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AMERICA'S  CASE  AGAINST  GERMANY 


AMERICA'S  CASE 
AGAINST  GERMANY 

BY 

LINDSAY  ROGERS.  ph.d..  llb. 

ADJUNCT  PROFESSOR  OF  POLITICAL  SCIENCE  IN 
THE  UNIVERSITY  OF  VIRGINIA 


NEW  YORK 
E.  P.  DUTTON  &   COMPANY 

681    FIFTH  AVENUE 


COPYRIGHT,  1917, 

bt  e.  p.  button  &  ca 


printed  <ti  the  anitcd  States  of  Hmerica 


^ 


TO 


MY  FATHER  AND  MOTHER 


PREFACE 

I  HAVE  attempted  in  the  pages  that  follow  to 
describe  the  origin  and  development  of  the  con- 
troversy which  was  the  immediate  cause  of  war 
between  the  United  States  and  Germany.  The 
diplomatic  exchanges  dealing  with  the  subma- 
rine issue  are  not  accessible  to  every  one;  and 
in  any  event  they  contain  so  much  verbiage  and 
are  so  arranged  that  they  will  not  be  resorted 
to  in  order  to  secure  a  knowledge  of  the  issues 
involved.  I  have  sought  to  furnish  a  chrono- 
logical account  of  Mr.  Wilson's  policy — ^narra- 
tive and  explanatory,  not  critical  or  defensive, 
for  it  is  too  early  to  pass  definite  judgment. 

There  are  unmistakable  evidences  that  the 
justice  of  our  case  against  Germany  has  not 
been  clearly  understood  even  by  loyal  Ameri- 
cans. If  one  reads  the  debates  in  Congress  on 
the  war  resolution  or  armed  neutrality,  for  ex- 
ample, he  cannot  fail  to  discover  an  amount  of 
misinformation  which  is   surprising  and  dis- 

vii 


viii  PREFACE 

heartening.  And  so  I  have  thought  it  worth 
while  to  give  a  treatment  of  the  points  of  in- 
ternational law  involved  as  brief  and  nntechni- 
cal  as  is  consistent  with  the  necessity  for 
explaining  the  legal  grounds  of  the  American 
position — particularly  with  regard  to  the  sub- 
marine as  a  new  weapon,  not  subject  to  estab- 
lished rules,  the  status  of  armed  merchant  ships, 
the  problem  of  munition  exports,  and  the  dif- 
ference between  the  English  and  German 
*^ blockades/'  These  are  the  problems  which 
seem  to  have  caused  the  greatest  confusion  of 
thought,  and  no  attempt  has  yet  been  made  to 
treat  them  together  and  to  furnish  the  basis 
upon  which  war  with  Germany  was  inevitable. 
In  the  introductory  chapter  I  refer  briefly 
to  the  fact  that  President  Wilson  has  ascribed 
our  participation  in  the  war  to  the  duty  of 
fighting  for  peace,  democracy,  and  liberty 
against  a  state  which  has  committed  terrible 
outrages  on  these  ideals,  and  that  there  are 
grounds,  other  than  the  legal  one,  upon  which 
our  case  against  Germany  may  be  rested.  The 
formulation  of  a  moral  indictment  is  not  here 
attempted;    it    has    already    been    repeatedly 


PREFACE  ix 


drawn  up  in  the  literature  which  seeks  to  ex- 
plain the  purposes  of  those  nations  which  are 
now  our  Allies.  Germany  was  guilty  of  a  brut- 
ish invasion  of  human  rights  everywhere,  and 
it  was  simply  one  phase  of  this — the  callous 
assassination,  not  alone  on  the  high  seas,  of 
noncombatant  citizens  of  both  sexes  and  all 
ages — which  so  aroused  the  indignation  of 
America  that  war  was  inevitable.  The  mere 
unlawfulness  of  the  submarine  warfare  was 
not  decisive ;  that  might  have  been  overlooked. 
But  it  is  nevertheless  true  that  the  purely  legal 
issue  is  of  fundamental  importance,  because 
if  American  citizens  had  not  had  a  legal  right 
to  travel  unmolested,  even  when  on  armed  mer- 
chantmen ;  if  American  vessels,  no  matter  with 
what  cargoes,  had  not  had  a  legal  immunity 
from  destruction  until  the  lives  of  their  pas- 
sengers and  crew  were  safeguarded,  the  United 
States  would  have  been  unable  to  protest 
against  the  war  zone  decree,  to  announce  that 
Germany  would  be  held  to  a  ^*  strict  accounta- 
bility,'' and  to  consider  the  sinking  of  the 
Lusitania  *  deliberately  unfriendly.''  But  for 
the  fact  that  the  United  States  could  rest  its 


X  PREFACE 

case  upon  the  unquestioned  principles  of  inter- 
national law,  it  is  certain  that  the  exercise  of 
personal  privileges,  unprotected  by  interna- 
tional agreement,  would  not  have  been  sup- 
ported at  the  cost  of  war. 

To  be  sure,  Mr.  Wilson's  protests  were  in 
part  calculated  to  stay  an  international  ruth- 
lessness  which  demanded  our  condemnation 
and  threatened,  if  it  did  not  already  affect,  our 
interests.  But  the  repeated  disregard  by  Ger- 
many of  legal  rights  was  responsible  for  the 
moral  indignation  which  made  war  inevitable, 
and  it  is  of  fundamental  importance,  I  take  it, 
that  the  correctness  of  America's  legal  position 
be  understood,  because,  but  for  it,  we  would 
still  be  at  peace.  It  is  only  one,  but  it  is  the 
primary  and  indispensable  part  of  America's 
case  against  Germany,  and  to  contribute  to  its 
understanding — which  should  be  had  by  every 
intelligent  citizen — this  book  has  been  written. 


BIBLIOGRAPHICAL  NOTE 

A  vast  amount  of  material  has  appeared  in 
print  dealing  with  international  law  and  the 
war  generally,  and  with  the  submarine  question 
particularly.  Much  of  this  is  of  a  very  ephem- 
eral character,  and  it  would  be  futile  to  attempt 
any  exhaustive  bibliography.  Attention  may, 
however,  be  properly  drawn  to  some  of  the 
more  accessible  and  important  authorities. 

The  diplomatic  documents  on  the  submarine 
controversy  have  been  published  in  several 
forms.  The  Department  of  State  has  issued 
three  White  Papers  (the  last  appearing  on 
August  12,  1916) ;  the  correspondence  then 
available  appears,  very  competently  edited,  in 
Supplements  (July,  1915,  and  October,  1916)  to 
the  American  Journal  of  International  Law; 
some  of  the  documents  are  available  in  the  con- 
venient form  of  the  pamphlets  of  the  World 
Peace  Foundation  and  the  American  Associa- 
tion for  International  Conciliation;  many  of 

xi 


xii  BIBLIOGRAPHICAL  NOTE 

them  were  published  in  the  Congressional 
Record  from  time  to  time,  and  Congressman 
S.  D.  Fess  has  attempted  to  collect  them  all 
under  the  title,  ^'The  Problems  of  Neutrality 
When  the  World  Is  at  War'*  (64th  Congress, 
2d  Session,  House  Document,  2111).  Most  of 
the  more  important  notes  appear  without 
abridgment  in  The  New  York  Times  Current 
History,  which  is  valuable  also  for  an  account 
of  all  the  submarine  outrages,  some  of  which 
did  not  figure  in  the  diplomatic  exchanges. 

The  most  elaborate  secondary  work  is  Dr. 
Coleman  Phillipson's  International  Law  and 
the  Great  War  (London,  1915,  and  New  York, 
1916),  but  this  was  completed  immediately  after 
the  sinking  of  the  Liositania.  More  valuable  is 
the  material  which  has  appeared  in  the  Amer- 
ican Journal  of  International  Law.  Under  the 
general  heading  ''International  Law  and  the 
European  War,''  Professor  James  W.  Garner 
has  discussed  "The  Use  of  Submarine  Mines" 
(Vol.  IX,  p.  86);  ''Contraband,  Right  of 
Search,and  Continuous  Voyage"  (/6z<i.,  p.  372) ; 
"War  Zones  and  Submarine  Warfare"  {Ihid,, 
p.  594) ;  "Destruction  of  Neutral  Merchant  Ves- 


BIBLIOGRAPHICAL  NOTE  xiii 

sels''  (Vol.  X,  p.  12) ;  ^^The  Sale  and  Exporta- 
tion of  Arms  and  Munitions  of  War  to  Belliger- 
ents*' (Ihid.,  p.  749).  Elaborate  editorials  by 
the  distinguished  editor  of  the  Journal,  Dr. 
James  Brown  Scott,  cover  practically  all  of  the 
legal  questions  to  which  the  war  has  given  rise. 
Worthy  of  mention  also  are  the  following; 
Edwin  J.  Clapp,  Economic  Aspects  of  the  War 
(New  Haven,  1915),  which  attacks  England's 
restrictions  on  trade ;  Sir  Francis  Piggott,  The 
Neutral  Merchant  and  Contraband  of  War  and 
Blockade  (London,  1915),  which  is  by  far  the 
best  defense  of  the  Orders  in  Council  and  de- 
serves an  American  edition;  Sir  Frederick 
Smith,  The  Destruction  of  Merchant  Ships  un- 
der International  Law  (London,  1917) ;  A. 
Pearce  Higgins,  Defensively  Armed  Merchant 
Ships  and  Submarine  Warfare  (London,  1917), 
which  is  an  amplified  edition  of  his  American 
Journal  of  International  Law  article  (Vol. 
Vni,  p.  705;  also  published  as  Senate  Docu- 
ment No.  332,  64th  Congress,  1st  Session) ; 
Raleigh  C.  Minor,  ^^The  Rule  of  Law  Which 
Should  Govern  the  Conduct  of  Submarines  with 
Reference   to   Enemy   and   Neutral   Merchant 


xiv  BIBLIOGRAPHICAL  NOTE 

Vessels  and  the  Conduct  of  Such  Vessels 
Toward  Submarines^'  {Proceedings  of  the 
American  Society  of  International  Law,  1916, 
Vol.  X,  p.  51) — an  extremely  clear  statement  of 
the  rules,  and  William  Cullen  Dennis,  ''Rights 
of  Citizens  of  Neutral  Countries  to  Sell  and 
Export  Arms  and  Munitions  of  War  to  Bellig- 
erents'' {Annals  of  the  American  Academy  of 
Political  and  Social  Science,  Vol.  LX,  p.  168). 
Special  attention  should  be  directed,  finally, 
to  two  articles,  each  of  which  gives,  I  think,  the 
best  discussion  thus  far  of  its  particular  sub- 
ject. An  anonymous  writer,  evidently  an  Amer- 
ican, contributes  to  The  Round  Table  (June, 
1916,  No.  23)  a  remarkably  able  article  on  ''The 
German- American  Submarine  Controversy, ' ' 
which  discusses  the  most  important  points  up 
to  thb  sinking  of  the  Sussex;  and  Professor 
Monroe  Smith  gives  in  the  Political  Science 
Quarterly  (December,  1916)  a  sometimes  cur- 
sory but  always  incisive  and  fair  consideration 
of  "American  Diplomacy  in  the  European 
War." 


Vy 


TABLE  OF  CONTENTS 

PAGB 

Preface vii 

Bibliographical  Note xi 

CHAPTER 

I    Introductory     1 

II    The  War  Zone  Decrees  and  Germany's 

Submarine  Blockade 11 

V  III    Some  Points  of  International  Law   .  40 

IV    The  "Lusitania"  and  Other  Outrages  60 

V    V    The  German  Pledges 97 

VI    The  Trade  in  Munitions  of  War    .     .  109 

VII    Submarine  Warfare  in  the  Mediter- 
ranean         138 

VIII    Armed  Merchantmen 153 

IX    The  "Sussex"  and  the  Pledges.     .     .  170 

X    The  Parting  of  the  Ways   ....  189 

XI    Overt  Acts,  Armed  Neutrality,  and 

War 207 

XII    The  Right  of  Retaliation  ....  224 

Appendix  ■  (i)  President  Wilson's  Address  to 
Congress  Asking  for  a  Declaration  of  War. 
(ii)  Official  List  of  German  Outrages  on 

American  Ships  and  Lives 237 

Index 259 


AMERICA'S  CASE  AGAINST  GERMANY 


AMERICA'S  CASE  AGAINST 
GERMANY 

CHAPTER  I 

INTKODUCTORY 

No  war  in  which  the  United  States  has  ever 
engaged  has  had  greater  justification  than  the 
one  recognized  on  April  6,  1917.  The  language 
of  the  congressional  resolution,  which  asserted 
that  the  Imperial  German  Government  had 
^^  committed  repeated  acts  of  war'^  and  for- 
mally declared  a  status  which  had  been  ^^  thrust 
upon''  the  United  States  of  America,  was 
strictly  accurate,  because  for  more  than  two 
years  President  Wilson  attempted  in  vain  to 
persuade  Germany  to  abandon  the  wanton  sink- 
ing of  merchant  vessels  in  disregard  of  the 
undisputed  rules  of  international  law  and  ele- 
mentary dictates  of  humanity.  In  the  refusal 
of  the  Imperial  Government  to  cease  the  murder 

1 


2      AMERICA'S  CASE  AGAINST  GERMANY 

of  American  citizens  and  the  destruction  of 
American  property  is  to  be  found  the  immediate 
cause  of  the  entrance  of  the  United  States  into 
the  European  conflict;  and  while  our  abandon- 
ment of  the  intolerable  role  of  neutral  enables 
us  formally  to  declare  what  many  of  us  have 
long  felt — that  the  Allies  have  been  fighting  for 
our  ideals ;  that  the  submarine  warfare  is  simply 
symptomatic  of  an  international  ruthlessness 
which  cannot  be  allowed  to  triumph;  that,  in 
President  Wilson's  phrase,  it  is  a  warfare 
against  all  mankind,  against  all  nations — nev- 
ertheless the  reason  why  the  United  States 
finally  decided  to  substitute  force  for  argument 
was  the  continued  assertion  by  Germany  of  the 
right  to  use  the  submarine  against  commerce. 
This,  he  maintained,  could  not  be  done  except 
in  violation  of  principles  of  international  law 
so  humane  and  so  fundamental  that  their  aban- 
donment by  a  proud,  self-respecting  nation  was 
unthinkable. 

The  immediate  cause  of  a  war  may  be  lost 
sight  of  in  larger  issues  and  this  is  abundantly 
true  in  the  present  instance.  We  are  prone  to 
justify  our  entrance  on  the  basis  of  American 


INTRODUCTORY  3 

approval  of  the  purposes  of  the  Entente  Allies 
and  disapproval  of  the  purposes  of  the  Central 
Powers.  In  the  opinion  of  a  great  many  Amer- 
icans an  international  conscience  would  long  ago 
have  justified  us  in  casting  in  our  lot  on  the  side 
of  England  and  France.  Before  the  submarine 
campaign  was  inaugurated  it  had  become  trite 
to  say  that  American  public  opinion  was  whole- 
heartedly sympathetic  with  the  Allies;  that 
America  was  very  generally  convinced  that  if 
Germany  did  not  will  the  war,  she  did  not  exert 
herself — at  least  until  too  late — to  avert  such 
a  terrible  catastrophe;  that  the  theory  of  the 
State  as  power — ^preached  by  Treitschke  and 
popularized  by  Bernhardi — is  exactly  contrary 
to  the  political  beliefs  of  democratic,  liberty-lov- 
ing America;  that  in  a  struggle  between  Prus- 
sian military  autocracy  and  democratic  ideals 
our  support  could  not  but  be  given  to  the  latter, 
and  that  America  abhors  this  Prussian  ideal 
as  evidenced  in  actual  fact :  the  invasion  of  Bel- 
gium, the  atrocities,  the  violations  of  interna- 
tional law — all  deeds  in  fulfillment  of  the  in- 
junction of  the  German  War  Book  that  an  eif  ort 
should  be  made  to  destroy  the  complete  mate- 


4      AMERICA'S  CASE  AGAINST  GERMANY 

rial  and  moral  resources  of  the  enemy.  *'War 
is  an  act  of  violence  which  in  its  application 
knows  no  bounds/^  The  submarine  campaign, 
with  its  disregard  of  the  distinction  between 
combatants  and  noncombatants,  with  its  viola- 
tion of  sacred  principles  of  international  law 
and  humanity,  has  simply  been  another  evidence 
of  this  theory.  The  Allies  are  fighting  our  bat- 
tle; they  have  been  sacrificing  for  everything 
we  believe  in  to  combat  the  things  that  we  do 
not  believe  in.  Only  an  Allied  victory  can  in- 
sure a  stable  peace  and  America  should  not 
stand  indifferently,  but  should  make  sacrifices  in 
its  turn  to  fulfill  this  noble  purpose. 

Again,  the  belief  is  now  widely  held  that  the 
refusal  of  the  United  States  to  continue  on 
friendly  relations  with  Germany  may  be  justi- 
fied on  the  ground  of  policy,  on  a  consideration 
of  our  own  material  interests  as  the  greatest 
nation  of  the  Western  World.  A  successful 
outcome  of  the  submarine  campaign  would  mean 
the  destruction  of  the  British  Navy,  first  of 
all,  and  secondly,  the  dismemberment  of  the 
British  Empire.  Without  England's  sea  power 
to  support  it,  the  Monroe  Doctrine  would  be- 


INTRODUCTORY  5 

come  a  mere  hrutum  fulmen;  it  would  be  safer 
to  cancel  it  as  obsolete  rather  than  attempt  to 
enforce  it.  The  security  of  the  colonial  posses- 
sions of  the  United  States  would  be  endangered 
and  this  country  would  face  a  most  calamitous 
trade  war.  The  points  need  not  be  argued.  A 
moment's  reflection  is  all  that  is  necessary  to 
establish  them;  and  incontrovertible  evidence 
has  been  furnished  by  the  Zimmermann  propo- 
sal to  Japan  and  Mexico  to  join  with  Germany 
in  an  alliance  against  the  United  States. 

But  these  considerations  were  not  the  ones 
which  forced  the  United  States  into  war  with 
Germany.  The  real  reason  was  assigned  by 
President  Wilson  when  he  announced  to  Con- 
gress that  diplomatic  relations  had  been  broken : 
Germany  had  wantonly  violated  international 
law ;  she  had  disregarded  the  absolute  immunity 
which  all  neutral  citizens  have  when  on  the  high 
seas  in  private,  unresisting  vessels;  she  had 
made  pledges  only  to  break  them,  and  her  final 
announcement  was  so  flagrant  in  its  disregard 
of  international  right,  so  insulting  in  its  de- 
mands upon  the  United  States,  that  self-respect 
alone  was  sufficient  to  compel  the  action  then 


6      AMERICA'S  CASE  AGAINST  GERMANY 

taken,  and  when,  during  the  ensuing  two 
months,  Germany  continued  her  submarine  cam- 
paign, if  anything  more  ruthlessly,  war,  as  the 
ultima  ratio,  was  forced  upon  the  United 
States ;  and  a  nation  which  up  until  then  had  at 
times  appeared  too  ready  to  compromise,  too 
eager  to  avoid  an  absolute  impasse  in  the  con- 
troversy, prepared  to  prosecute  its  right  by 
force. 

Mr.  Wilson's  address  to  Congress  asking  for 
a  declaration  of  war  recognized  the  grounds 
other  than  those  upon  w^hich  his  diplomatic 
notes  had  been  based.  ^'We  are  now,''  he  said, 
*' about  to  accept  the  gage  of  battle  with  this 
natural  foe  to  liberty  and  shall,  if  necessary, 
spend  the  whole  force  of  the  nation  to  check  and 
nullify  its  pretensions  and  power.  We  are 
glad,  now  that  we  see  the  facts  with  no  veil  of 
false  pretense  about  them,  to  fight  thus  for  the 
ultimate  peace  of  the  world  and  for  the  lib- 
eration of  its  peoples,  the  German  peoples  in- 
cluded; for  the  rights  of  nations,  great  and 
small,  and  the  privilege  of  men  everywhere  to 
choose  their  way  of  life  and  obedience." 
And  the  war  was  demanded,  also,  for  the  pres- 


INTEODUCTORY  7 

ervation  of  our  own  safety,  since  the  German 
Government  ^'entertains  no  real  friendship  for 
us,  and  means  to  act  against  our  peace  and 
security  at  its  convenience.  That  it  means  to 
stir  up  enemies  against  us  at  our  very  doors 
the  intercepted  note  to  the  German  Minister  at 
Mexico  City  is  eloquent  evidence.  ^ ' 

Yet  it  remains  true  that,  if  it  had  not  been 
for  the  submarine  warfare,  we  would  probably 
have  remained  at  peace  with  Germany;  and  in 
regarding  such  a  weapon  as  evidence  that  the 
Imperial  Government  refuses  to  subscribe  to 
the  humane  practices  of  civilized  nations  and 
persists  in  denying  one  of  international  law^s 
most  fundamental  principles — that  the  effects 
of  war  should  be  limited  to  the  armed  forces 
of  the  enemy ;  in  believing  that  we  are  fighting 
for  liberty,  democracy,  and  governmental  de- 
cency, we  should  not  forget  the  patience  which 
has  marked  our  protests  to  Germany,  nor 
should  we  be  unmindful  of  the  fact  that  the 
contentions  of  the  United  States  have  been 
morally  and  legally  correct  in  every  particular. 

Great  wars  always  cause  the  sacrifice  of  neu- 
tral rights.    This  is  nothing  to  be  wondered  at, 


8      AMERICA'S  CASE  AGAINST  GERMANY 

since  those  rules  of  international  law,  the  vio- 
lation or  extension  of  which  works  such  hard- 
ships on  the  nations  which  remain  at  peace, 
while  sometimes  marking — as  with  respect  to 
contraband — a  compromise  between  belligerent 
and  neutral  interest,  have  resulted  largely  from 
prize  court  decisions  and  from  conferences  of 
military  and  naval  experts,  both  sources  being 
greatly  prejudiced  in  favor  of  the  enlargement 
of  belligerent  right.  In  the  present  conflict, 
the  United  States  has  suffered  very  extensively 
and  very  vitally,  not  only  on  account  of  the 
magnitude  of  the  struggle,  but  on  account  of 
the  character  of  the  violations  of  international 
law.  On  the  part  of  one  group  of  belligerents, 
these  have  involved  only  property  rights  and 
the  question  of  damages  is  arbitrable.  The 
other  group  of  belligerents  has  taken  over 
two  hundred  American  lives — and  the  lives  of 
at  least  two  thousand  other  noncombatants — 
and  has  persisted  in  a  policy  so  wanton  that  it 
could  not  be  further  endured. 

As  President  Wilson  said  in  April,  1916,  when 
he  threatened  to  break  off  diplomatic  relations 
on  account  of  the  sinking  of  the  Sussex,  the  Gov- 


INTRODUCTORY  9 

ernment  of  the  United  States  has  been  patient 
to  the  point  of  tolerance;  it  has  accepted  suc- 
cessive explanations  and  assurances  in  good 
faith,  and  it  has  made  allowance  for  unprece- 
dented conditions,  but  it  could  not  continue  to 
suffer  violations  of  *'the  principles  of  humanity, 
the  long  established  and  incontrovertible  rights 
of  neutrals,  and  the  sacred  immunities  of  non- 
combatants."  With  only  protests  the  United 
States  time  and  time  again  answered  acts  which 
were  fully  justifiable  grounds  for  hostilities,  and 
which  even  seemed  to  invite  a  declaration  of 
war.  But  the  pronouncement  of  January  31, 
1917 — that,  with  an  avowed  disregard  for  neu- 
tral as  well  as  enemy  noncombatants,  women 
and  children  as  well  as  men,  Germany  would 
sink  all  merchant  vessels — ^made  further 
friendly  relations  impossible;  and  the  wholly 
unrestricted  destruction — even  of  hospital  ships 
— made  war  inevitable.^ 

*  The  following  dispatch,  for  example,  appeared  in  the  papers 
on  April  29th: 

''Copenhagen,  April  28, — Announcement  was  made  before  the 
Reichstag  main  committee  in  Berlin  yesterday  that  Germany 
will  adopt  the  sharpest  reprisals  if  German  prisoners  are  em- 
barked on  hospital  ships  of  the  Allies  and  exposed  to  the  danger 
of  torpedoes." 


10    AMERICA'S  CASE  AGAINST  GERMANY 

And  now  that  hostilities  have  begun,  it  is 
worth  while  to  attempt  a  history  of  our  patient 
protests,  for  they  tell  the  story  of  repeated  in- 
dignities and  contain  an  adequate  statement  of 
the  undisputed  legal  principles  upon  which  our 
position  has  rested.  They  justify  to  the  utmost 
measure  our  going  to  war  with  Germany,  while 
meeting  England's  naval  activities  with  only 
argumentative  protests.  It  is  to  the  story  of 
our  negotiations  with  Germany  and  comment 
on  the  points  of  international  law  in  issue,  that 
this  book  will  be  devoted. 


CHAPTER  II 


THE     WAB     ZONE     DECREES     AND     GERMANY'S     SUB- 
MARINE '^blockade'' 


The  right  to  nse  submarines  against  mercliant 
vessels — and  it  is  the  assertion  by  Germany  of 
that  right  to  which  the  United  States  has  ob- 
jected— is  bound  up  with  the  question  of  war 
zones,  strategic  areas  from  which  private  ves- 
sels are  warned.  The  latter  problem  is  a  new 
one  in  international  law  and  as  yet  largely  un- 
regulated. One  of  the  first  applications  of  the 
principle  that  a  certain  portion  of  the  high  seas 
may  be  designated  by  belligerents ;  that  therein 
they  may  exercise  their  rights  of  capture  and 
sinking  to  the  fullest  degree,  and  that  neutral 
vessels  are  more  likely  to  come  to  grief  on  ac- 
count of  hostile  operations,  was  in  a  Japanese 
ordinance  issued  two  weeks  before  the  outbreak 
of  the  war  with  Russia.    Instead  of  a  war  zone 

the  restricted  vicinity  was  called  a  *  ^  defense  sea 

11 


12    AMERICA'S  CASE  AGAINST  GERMANY 

area/'  and  among  other  regulations  merchant 
vessels  were  forbidden  ingress  and  egress  at 
night.  This  involved  no  important  questions  of 
international  law/  but  in  spite  of  the  indefinite- 
ness  of  the  rules  concerning  war  zones,  several 
considerations  may  be  ventured. 

In  the  first  place,  while  neutral  vessels  may 
be  warned  of  impending  danger  if  they  enter 
the  specified  areas,  it  is  indisputable  that  merely 
by  conveying  such  a  warning  the  belligerent 
acquires  no  additional  rights  within  the  zone 
other  than  those  he  has  outside.  The  waters 
which  are  sought  to  be  restricted  remain  a  por- 
tion of  the  high  seas  and  the  neutral  has  a  right 
to  navigate  them.  Furthermore,  while  the  Sec- 
ond Hague  Peace  Conference  refused  to  adopt 
the  proposal  of  the  British  delegation  that  the 
laying  of  mines  in  the  open  seas  be  absolutely 
prohibited,  it  is  doubtful  whether  a  belligerent 
has  any  right  to  sow  mines  in  such  places  that 
neutral  ships  will  be  destroyed  while  engaged  in 
peaceful  navigation.^ 

*A  good  discussion  of  the  problem  is  to  be  found  in  Inter- 
national Law  Situations,  1912,  pp.  114-139. 

'  Two  recent  English  writers  of  high  authority  attach  '  *  no 
special  importance  to   the   declaration  issued  by   the  British 


GERMANY'S  SUBMARINE  "BLOCKADE^'      13 

A  war  zone  in  the  present  conflict  was  first 
declared  by  Great  Britain  on  October  13,  1914, 
when  an  Admiralty  announcement  stated  that 
His  Majesty's  Government  had  authorized  a 
mine  laying  policy  in  certain  areas,  and  that  it 
would  be  dangerous  for  ships  to  cross  these 
limits.  This  was  simply  a  notice  to  mariners  but 
three  weeks  later  (November  3rd),  the  Admiral- 
ty announced  that  since  the  Germans  had  scat- 
tered mines  indiscriminately  on  the  main  trade 
route  from  America  to  Liverpool  via  the  North 
of  Ireland  with  the  subsequent  destruction  of 
innocent  ships  (and  the  White  Star  Liner  Olym- 
pic had  had  a  lucky  escape),  it  would  be  ^^neces- 
sary to  adopt  exceptional  measures  appropriate 
to  the  novel  conditions  under  which  this  war  is 
being  waged. ' '    Notice  was  therefore  given 

* '  that  the  whole  of  the  North  Sea  must  be  considered 
a  military  area.    Within  this  area  merchant  shipping 

Admiralty  affecting  to  make  the  North  Sea  'a  military  area.' 
All  that  such  a  declaration  can  effect  is  to  put  neutrals  on 
guard:  to  inform  them  that  their  presence  in  such  waters  will 
be  regarded  as  suspicious,  and  that,  when  navigating  there, 
they  will  be  more  than  ordinarily  liable  to  charges  of  contra- 
band trading  or  of  unneutral  service.  Probably  no  more  is 
meant.''  T.  Baty  and  J.  H.  Morgan,  War:  Its  Conduct  and 
Legal  Mesults,  pp.  224-225. 


14    AMEEICA'S  CASE  AGAINST  GERMANY 

of  all  kinds,  traders  of  all  countries,  fishing  craft, 
and  all  other  vessels  will  be  exposed  to  the  gravest 
dangers  from  mines  which  it  has  been  necessary  to 
lay,  and  from  warships  searching  vigilantly  by  night 
and  day  for  suspicious  craft.  All  merchant  and  fish- 
ing vessels  of  every  description  are  hereby  warned 
of  the  dangers  they  encounter  by  entering  this  area 
except  in  strict  accordance  with  Admiralty  directions. 
Every  effort  will  be  made  to  convey  this  warning 
to  neutral  countries  and  to  vessels  on  the  sea,  but 
from  the  5th  of  November  onward  the  Admiralty 
announce  that  all  ships  passing  a  line  drawn  from 
the  northern  point  of  the  Hebrides  through  the  Faroe 
Islands  to  Iceland  do  so  at  their  own  peril. ' ' 

Ships  wishing  to  trade  with  Norway,  Den- 
mark, Holland,  etc.,  were  advised  to  come  by  the 
English  Channel  where  they  would  be  given 
sailing  directions  for  a  safe  passage.  Adher- 
ence to  the  routes  advised  would  permit  com- 
merce to  reach  its  destination,  ^^so  far  as  Great 
Britain  is  concerned,  but  any  straying  even  for 
a  few  miles  from  the  course  thus  indicated,  may 
be  followed  by  fatal  consequences. ' '  In  a  state- 
ment made  to  the  House  of  Commons  on  No- 
vember 17th,  Mr.  Asquith  said  that  for  the  first 
two  months  of  the  war  Great  Britain  had  ab- 


GEEMANY'S  SUBMAEINE  "BLOCKADE'^      15 

stained  absolutely  from  the  use  of  mines  outside 
of  British  territorial  waters ;  but  Germany,  the 
Admiralty  declared,  using  a  merchant  vessel 
flying  a  neutral  flag  had  sowed  mines  indiscrim- 
inately, and  thus  "wantonly  and  recklessly  en- 
dangered the  lives  of  all  who  travel  on  the  sea 
regardless  of  whether  they  are  friend  or  foe, 
civilian  or  military  in  character.*'  A  counter 
measure  was  therefore  necessary. 

Against  this  action,  the  United  States  entered 
no  protest.  But,  while  the  wisdom  of  acquies- 
cence seems  doubtful,  and  while  even  by  the 
British  measure  the  lives  of  noncombatants 
were  endangered,  England's  command  of  the 
seas  enabled  her  to  afford  pilots  to  American 
ships  and  to  reduce  to  a  minimum  the  possi- 
bility of  disaster  so  far  as  the  mines  laid  by 
her  were  concerned.  And  England,  it  should  be 
remembered,  expressed  the  desire  to  safeguard 
neutral  interests  in  every  possible  manner,  and 
notified  neutrals  of  the  dangerous  area  in  ac- 
cordance with  the  Hague  Convention.  The  Ger- 
man mine  laying  was  surreptitious  and  was 
denied,  but  that  it  was  prior  to  the  British 
measure  seemed  established.  The  German  "war 


16    AMERICA'S  CASE  AGAINST  GERMANY 

zone  decree/'  however,  which  marked  the  be- 
ginning of  the  controversy  with  the  United 
States,  was  of  a  much  more  sinister  character. 

Late  in  1914  Admiral  Von  Tirpitz  said  that 
the  submarine  would  be  used  to  sink  mercliant 
vessels  in  British  waters,  but  the  rules  of  inter- 
national law  enumerating  the  exceptional  cases 
in  which  prizes  might  be  destroyed — the  safety 
of  passengers  and  crew  always  being  an  indis- 
pensable sine  qua  non — were  so  definite,  and 
the  considerations  of  humanity  so  potent,  that 
such  a  procedure  was  almost  unthinkable,  and 
so  not  much  attention  was  paid  to  the  German 
admiral's  announcement.  On  February  4, 1915, 
however,  there  was  issued  the  proclamation  de- 
creeing the  destruction  of  merchant  vessels  by 
submarines.    It  read  as  follows : 

**1.  The  waters  surrounding  Great  Britain  and 
Ireland  including  the  whole  English  Channel  are 
hereby  declared  to  be  war  zone.  On  and  after  the 
18th  of  February,  1915,  every  enemy  merchant  ship 
found  in  the  said  war  zone  will  be  destroyed  with- 
out its  being  always  possible  to  avert  the  danger 
threatening  the  crews  and  passengers  on  that  account. 

"2.  Even  neutral  ships  are  exposed  to  danger  in 
the  war  zone  as  in  view  of  the  misuse  of  neutral 


GERMANY^S  SUBMARINE  "BLOCKADE"      17 

flags  ordered  on  January  31st  by  the  British  Govern- 
ment and  of  the  accidents  of  naval  war,  it  cannot 
always  be  avoided  to  strike  even  tieutral  ships  in  at- 
tacks that  are  directed  at  enemy  ships. 

''3.  Northward  navigation  around  the  Shetland  Is- 
lands, in  the  eastern  waters  of  the  North  Sea  and  in 
a  strip  of  not  less  than  30  miles  width  along  the 
Netherlands  coast  is  in  no  danger.'' 

A  memorial  of  the  Imperial  German  Gov- 
ernment accompanying  this  proclamation 
frankly  justified  it  as  a  retaliatory  measure  for 
Great  Britain's  interferences  with  German 
trade.  Long  afterward  (March,  1916)  the 
ground  of  defense  was  shifted  and  it  was 
claimed  that  the  use  of  the  submarine  against 
private  vessels  could  not  be  illegal  because,  the 
weapon  being  a  new  one,  there  were  no  rules 
on  the  subject.  But  this  obviously  fallacious 
argument — to  be  considered  more  in  detail  later 
— was  not  advanced  by  the  original  German 
memorial.  This  alleged  many  violations  of  in- 
ternational law  on  the  part  of  Great  Britain: 
the  repudiation  of  the  Declaration  of  London; 
the  extension  of  contraband  lists ;  the  abandon- 
ment of  the  distinction  between  absolute  and 


18    AMERICA'S  CASE  AGAINST  GERMANY 

conditional  contraband;  the  seizure  of  noncon- 
traband  German  goods  on  neutral  vessels,  and 
the  declaration  that  the  North  Sea  should  be  an 
area  of  war, 

*' thereby  rendering  difficult  and  extremely  danger- 
ous, if  not  impossible,  all  navigation  on  the  high  seas 
between  Scotland  and  Norway,  so  that  they  have  in 
a  way  established  a  blockade  of  neutral  coasts  and 
ports,  which  is  contrary  to  the  elementary  princi- 
ples of  generally  accepted  international  law.  Clearly 
all  these  measures  are  part  of  a  plan  to  strike  not 
only  the  German  military  operations,  but  also  the 
economic  system  of  Germany,  and  in  the  end  to  de- 
liver the  whole  German  people  to  reduction  by  fam- 
ine, by  intercepting  legitimate  neutral  commerce  by 
methods  contrary  to  international  law." 

Complaint  was  made  that  the  powers  not  at 
war  had  acquiesced  in  the  measures  taken  by 
Great  Britain,  and  looked  with  indulgence  on 
these  violations  of  neutrality;  that  neutrals 
were  satisfied  with  theoretical  protests. 

'*The  time  has  come,"  the  memorandum  contin- 
ued, ''for  Germany  also  to  invoke  such  vital  interests. 
It  therefore  finds  itself  under  the  necessity,  to  its 
regret,  of  taking  military  measures  against  England 


GERMANY^S  SUBMARINE  "BLOCKADE^^      19 

in  retaliation  of  the  practice  followed  by  England. 
Just  as  England  declared  the  whole  North  Sea  be- 
tween Scotland  and  Norway  to  be  comprised  within 
the  seat  of  war,  so  does  Germany  now  declare  the 
waters  surrounding  Great  Britain  and  Ireland,  in- 
cluding the  whole  English  Channel,  to  be  comprised 
within  the  seat  of  war,  and  will  prevent  by  all  the 
military  means  at  its  disposal  all  navigation  by  the 
enemy  in  those  waters.  To  this  end  it  will  endeavor 
to  destroy,  after  February  18  next,  any  merchant 
vessels  of  the  enemy  which  present  themselves  at  the 
seat  of  war  above  indicated,  although  it  may  not  al- 
ways be  possible  to  avert  the  dangers  which  may 
menace  persons  and  merchandise.  Neutral  powers 
are  accordingly  forewarned  not  to  continue  to  in- 
trust their  crews,  passengers,  or  merchandise  to  such 
vessels.  Their  attention  is  furthermore  called  to  the 
fact  that  it  is  of  urgency  to  recommend  to  their  own 
vessels  to  steer  clear  of  these  waters.  It  is  true  that 
the  German  Navy  has  received  instructions  to  ab- 
stain from  all  violence  against  neutral  vessels  recog- 
nizable as  such;  but  in  view  of  the  hazards  of  war, 
and  of  the  misuse  of  the  neutral  flag  ordered  by  the 
British  Government,  it  will  not  always  be  possible  to 
prevent  a  neutral  vessel  from  becoming  the  victim 
of  an  attack  intended  to  be  directed  against  a  ves- 
sel of  the  enemy.  .  .  . 

*'The  German  Government  announces  this  measure 
at  a  time  permitting  enemy  and  neutral  ships  to  make 


20    AMERICA'S  CASE  AGAINST  GERMANY 

the  necessary  arrangements  to  reach  the  ports  situ- 
ated at  the  seat  of  war.  They  hope  that  the  neutral 
powers  will  accord  consideration  to  the  vital  inter- 
ests of  Germany  equally  with  those  of  England,  and 
will  on  their  part  assist  in  keeping  their  subjects  and 
their  goods  far  from  the  seat  of  war;  the  more  so 
since  they  likewise  have  a  great  interest  in  seeing 
the  termination  at  an  early  date  of  the  war  now 
ravaging. ' ' 

Against  this  announcement  the  United  States, 
with  other  neutrals,  protested  very  vigorously 
and  there  was  sent  to  Germany  the  celebrated 
'^strict  accountability*'  note  of  February  10, 
1915.  The  Government  of  the  United  States 
called  attention  to  the  serious  possibilities  of 
the  course  contemplated,  and  requested  ^^the 
Imperial  German  Government  to  consider,  be- 
fore action  is  taken,  the  critical  situation  .in  re- 
spect of  the  relations  between  this  country  and 
Germany  which  might  arise  were  the  German 
naval  forces,  in  carrying  out  the  policy  fore- 
shadowed in  the  Admiralty's  proclamation,  to 
destroy  any  merchant  vessel  of  the  United 
States  or  cause  the  death  of  American  citizens." 

The  sole  right  of  a  belligerent  dealing  with 
neutral  vessels  on  the  high  seas,  Germany  was 


GEKMANY'S  SUBMAEINE  "BLOCKADE"      21 

reminded,  is  limited  to  visit  and  search,  unless 
a  blockade  is  proclaimed  and  made  effective — a 
measure  which  the  German  proclamation  did 
not  propose — and 

*'To  declare  or  exercise  a  right  to  attack  and  de- 
stroy any  vessel  entering  a  prescribed  area  of  the 
high  seas  without  first  certainly  determining  its  bel- 
ligerent nationality  and  the  contraband  character 
of  its  cargo  would  be  an  act  so  unprecedented  in 
naval  warfare  that  this  Government  is  reluctant  to 
believe  that  the  Imperial  Government  of  Germany 
in  this  case  contemplates  it  as  possible.  The  suspi- 
cion that  enemy  ships  are  using  neutral  flags  improp- 
erly can  create  no  just  presumption  that  all  ships 
traversing  a  prescribed  area  are  subject  to  the  same 
suspicion.  It  is  to  determine  exactly  such  questions 
that  this  Government  understands  the  right  of  visit 
and  search  to  have  been  recognized.'' 

Germany  was  told,  further,  that  the  Govern- 
ment of  the  United  States  could  not  be  accused 
of  acquiescence  in  the  -measures  taken  by  Great 
Britain  to  restrain  neutral  trade;  that,  on  the 
contrary,  it  had  insisted  upon  the  observance  of 
the  recognized  principles  of  international  law 
and  was  free  to  hold  the  Allied  Governments 
responsible  for  damage  to  American  shipping; 


22    AMEEICA'S  CASE  AGAINST  GERMANY 

and  that  it  could  take,  with  a  clear  conscience, 
the  position  indicated  in  this  reply  to  the  Ger- 
man proclamation.  Therefore  a  solemn,  and 
apparently  definite  and  final  warning  was  con- 
veyed to  Germany  in  strong  words  which  have 
been  much  quoted: 

*'If  the  commanders  of  German  vessels  of  war 
should  act  upon  the  presumption  that  the  flag  of  the 
United  States  was  not  being  used  in  good  faith  and 
should  destroy  on  the  high  seas  an  American  ves- 
sel or  the  lives  of  American  citizens,  it  would  be  dif- 
ficult for  the  Government  of  the  United  States  to 
view  the  act  in  any  other  light  than  as  an  indefensi- 
ble violation  of  neutral  rights  which  it  would  be 
very  hard  indeed  to  reconcile  with  the  friendly  re- 
lations now  so  happily  subsisting  between  the  two 
Governments. 

"If  such  a  deplorable  situation  should  arise,  the 
Imperial  German  Government  can  readily  appreciate 
that  the  Government  of  the  United  States  would  be 
constrained  to  hold  the  Imperial  German  Govern- 
ment to  a  strict  accountability  for  such  acts  of  their 
naval  authorities  and  to  take  any  steps  it  might  be 
necessary  to  take  to  safeguard  American  lives  and 
property  and  to  secure  to  American  citizens  the  full 
enjoyment  of  their  acknowledged  rights  on  the  high 
seas. 


GERMANY^S  SUBMARINE  '^BLOCKADE''      23 

*  *  The  Government  of  the  United  States,  in  view  of 
these  considerations,  which  it  urges  with  the  greatest 
respect  and  with  the  sincere  purpose  of  making  sure 
that  no  misunderstanding  may  arise  and  no  cir- 
cumstance occur  that  might  even  cloud  the  inter- 
course of  the  two  Governments,  expresses  the  confi- 
dent hope  and  expectation  that  the  Imperial  German 
Government  can  and  will  give  assurance  that  Ameri- 
can citizens  and  their  vessels  will  not  be  molested  by 
the  naval  forces  of  Germany  otherwise  than  by  visit 
and  search,  though  their  vessels  may  be  traversing 
the  sea  area  delimited  in  the  proclamation  of  the 
German  Admiralty." 

This  protest  of  the  United  States,  it  will  be 
noticed,  was  based  almost  entirely  on  the  prin- 
ciple that  American  vessels  could  not,  by  any 
such  order,  be  kept  out  of  the  war  zone  and 
little  attention  was  paid  to  the  rights  of  Amer- 
ican citizens  on  belligerent  vessels  either  as 
passengers  or  as  members  of  the  crew.  As  for 
the  rights  of  American  vessels,  it  may  be 
pointed  out  here  that,  under  the  accepted  prin- 
ciples of  international  law,  vessels  belonging  to 
a  neutral  may  not  be  captured  and  confiscated 
by  a  belligerent  except  when  carrying  a  cargo 
more  than  half  of  which  is  contraband  or  when 


24    AMEKICA'S  CASE  AGAINST  GERMANY 

attempting  to  violate  a  blockade.  Now^  the 
fundamental  principle  of  a  blockade  is  that  in 
order  to  be  binding,  that  is,  to  make  legal  the 
confiscation  of  vessels  attempting  to  pass,  it 
must  be  effective.  Since,  during  the  first  nine 
weeks  after  the  German  decree,  according  to  the 
London  Times,  British  ports  had  11,635  arrivals 
and  sailings,  and  of  these  only  thirty-five  steam- 
ers were  sunk  by  submarines,  it  is  obvious  that 
the  German  measure  was  not  binding  and  noth- 
ing more  than  a  ''paper  blockade.'^  Hence, 
German  submarines  and  cruisers  had  the  right 
to  capture  a  neutral  vessel  only  on  account  of 
the  contraband  character  of  the  cargo,  and  if 
the  right  of  capture  was  thus  restricted,  the 
right  of  destruction  was  still  further  limited.^ 

To  this  communication  Germany  replied  on 
February  16th  in  a  long  memorandum  which 
reviewed  at  even  greater  length  than  the  orig- 
inal memorial  the  basis  of  such  a  measure  as 
that  contemplated.  The  note  was  very  polite 
and  attempted  to  counteract  the  unfavorable 
impressions  among  neutrals  which  had  been 

"See  the  discussion  of  this  right  in  the  following  chapter. 


GERMANY'S  SUBMAEINE  "BLOCKADE"      25 

caused  by  the  first  memorandum.  Germany,  it 
was  said, 

"is  to  all  intents  and  purposes  cut  off  from  oversea 
supplies  with  the  toleration,  tacit  or  protesting,  of 
the  neutrals  regardless  of  whether  it  is  a  question 
of  goods  which  are  absolute  contraband  or  only  con- 
ditional contraband  or  not  contraband  at  all,  follow- 
ing the  law  generally  recognized  before  the  outbreak 
of  the  war.  On  the  other  hand  England  with  the 
indulgence  of  neutral  Governments  is  not  only  being 
provided  with  such  goods  as  are  not  contraband  or 
merely  conditional  contraband,  namely,  foodstuffs, 
raw  material,  et  cetera,  although  these  are  treated 
by  England  when  Germany  is  in  question  as  absolute 
contraband,  but  also  with  goods  which  have  been 
regularly  and  unquestionably  acknowledged  to  be  ab- 
solute contraband.  The  German  Government  believe 
that  they  are  obliged  to  point  out  very  particularly 
and  with  the  greatest  emphasis,  that  a  trade  in  arms 
exists  between  American  manufacturers  and  Ger- 
many's enemies  which  is  estimated  at  many  hundred 
million  marks. 

'  *  The  German  Government  have  given  due  recogni- 
tion to  the  fact  that  as  a  matter  of  form  the  exercise 
of  rights  and  the  toleration  of  wrong  on  the  part  of 
neutrals  is  limited  by  their  pleasure  alone  and  in- 
volves no  formal  breach  of  neutrality.  The  German 
Government  have  not  in  consequence  made  any  charge 


26    AMERICA'S  CASE  AGAINST  GERMANY 

of  formal  breach  of  neutrality.  The  German  Gov- 
ernment cannot,  however,  do  otherwise,  especially  in 
the  interest  of  absolute  clearness  in  the  relations  be- 
tween the  two  countries,  than  to  emphasize  that  they, 
in  common  with  the  public  opinion  in  Germany,  feel 
themselves  placed  at  a  great  disadvantage  through 
the  fact  that  the  neutral  powers  have  hitherto  achieved 
no  success  or  only  an  unmeaning  success  in  their 
assertion  of  the  right  to  trade  with  Germany,  ac- 
knowledged to  be  legitimate  by  international  law, 
whereas  they  make  unlimited  use  of  their  right  to 
tolerate  trade  in  contraband  with  England  and  our 
other  enemies.  Conceded  that  it  is  the  formal  right 
of  neutrals  not  to  protect  their  legitimate  trade  with 
Germany  and  even  to  allow  themselves  knowingly  and 
willingly  to  be  induced  by  England  to  restrict  such 
trade,  it  is  on  the  other  hand  not  less  their  good 
right,  although  unfortunately  not  exercised,  to  stop 
trade  in  contraband,  especially  the  trade  in  arms, 
with  Germany's  enemies." 

After  six  months  of  *' patience  and  watchful 
waiting/'  Germany  had  been  compelled  to  meet 
this  '^  murderous  method  of  conducting  mari- 
time war  with  drastic  counter  measures, '^  and 
the  note  declared  that 

''If  England  invokes  the  powers  of  famine  as  an 
ally  in  its  struggle  against  Germany  with  the  inten- 


GEEMANY'S  SUBMARINE  "BLOCKADE"      27 

tion  of  leaving  a  civilized  people  the  alternative  of 
perishing  in  misery  or  submitting  to  the  yoke  of  Eng- 
land 's  political  and  commercial  will,  the  German  Gov- 
ernment are  to-day  determined  to  take  up  the  gaunt- 
let and  to  appeal  to  the  same  grim  ally.  They  rely 
on  the  neutrals  who  have  hitherto  tacitly  or  under 
protest  submitted  to  the  consequences,  detrimental 
to  themselves,  of  England's  war  of  famine  to  dis- 
play not  less  tolerance  toward  Germany,  even  if  the 
German  measures  constitute  new  forms  of  maritime 
war,  as  has  hitherto  been  the  case  with  the  English 
measures."* 

*  Complaint  was  made  particularly  that  the  American  ship 
Wilhelmina,  en  route  to  Hamburg,  had  been  seized  although  the 
' '  cargo  was  destined  solely  for  the  civil  population  of  Germany 
and  was  to  be  used  only  for  this  purpose  according  to  an  ex- 
press declaration  of  the  German  Government. ' '  But  in  Janu- 
ary, 1915,  the  Federal  Council  of  Germany  decreed  that  after 
February  1st,  grain  and  flour  imported  should  be  taken  over 
by  the  Government.  Foodstuffs  are  conditional  contraband  and 
are  liable  to  seizure  if  they  are  destined  for  the  armed  forces. 
England  therefore  claimed  that  in  view  of  this  decree  all  food- 
stuffs shipped  into  Germany  after  February  1st  would  be  liable 
to  seizure,  since  it  would  be  impossible  to  distinguish  between 
what  was  intended  for  the  civilian  population  and  what  for  the 
Government.  England 's  action  was  not  considered  legal  by  the 
United  States  which  protested.  It  should  be  said,  however,  that 
there  was  some  justification  as  a  measure  of  reprisal  for  a 
decision  to  consider  food  absolute  contraband  since  the  Dutch 
vessel  Maria,  with  a  cargo  of  grain  for  Ireland,  was  destroyed 
by  the  German  cruiser  Karlsruhe,  in  September,  1914,  without 
ascertaining  the  destination  of  the  grain. 

' '  The  German  Government  can  not  have  it  both  ways, ' '  said 


28    AMERICA'S  CASE  AGAINST  GERMANY 

Nevertheless,  in  spite  of  the  claim  that  the 
starvation  policy  was  illegal  and  the  assumption 
that,  as  ''a  matter  of  course^'  neutrals  would 
not  oppose  the  forcible  suppression  of  the  trade 
in  contraband,  the  note  went  on  to  admit  the 
justness  of  the  American  contention  and  said : 

"It  is  very  far  indeed  from  the  intention  of  the 
German  Government,  acting  in  obedience  to  these 
compelling  circumstances,  ever  to  destroy  neutral 
lives  and  neutral  property,  but  on  the  other  hand 
they  cannot  be  blind  to  the  fact  that  dangers  arise 
through  the  action  to  be  carried  out  against  England 
which  menace  without  discrimination  all  trade  within 
the  area  of  maritime  war.  This  applies  as  a  matter 
of  course  to  war  mines  which  place  any  ship  ap- 
proaching a  mined  area  in  danger,  even  if  the  limits 
of  international  law  are  adhered  to  most  strictly." 

a  memorandum  of  the  British  Foreign  Office.  ' '  If  they  consider 
themselves  justified  in  destroying  by  bombardment  the  lives  and 
property  of  peaceful  civil  inhabitants  of  English  open  towns 
and  watering  places,  and  in  seizing  and  sinking  ships  and 
cargoes  of  conditional  contraband  on  the  way  thither,  on  the 
ground  that  they  are  consigned  to  a  fortified  place  or  base,  'a 
fortiori'  His  Majesty's  Government  must  be  at  liberty  to  treat 
Hamburg,  which  is  in  part  protected  by  the  fortifications  at  the 
mouth  of  the  Elbe,  as  a  fortified  town,  and  as  a  base  of  opera- 
tions and  supply.  ..."  Germany,  it  may  be  added,  destroyed 
the  American  ship  William  P.  Frye,  which  was  bound  for  Fal- 
mouth, Queenstown,  or  Plymouth  with  a  cargo  of  wheat.  But 
this  incident  is  adverted  to  later. 


GERMANY'S  SUBMARINE  "BLOCKADE"      29 

Hope  was  expressed  that  neutral  shipping 
would  shun  the  dangers  of  mines  by  staying 
away  from  the  area  of  maritime  war — this  being 
the  safest  method  of  avoiding  ^  ^  unfortunate  ac- 
cidents." It  was  asserted  furthermore  that 
the  original  announcement  covered  only  enemy 
merchant  vessels,  not  all  merchant  vessels : 

"This  limitation  which  the  German  Government 
have  imposed  upon  themselves  impairs  the  military 
purpose,  especially  since  the  presumption  will  pre- 
vail, even  in  the  case  of  neutral  ships,  that  they  have 
contraband  on  board,  in  view  of  the  interpretation 
of  the  idea  of  contraband  in  which  the  English  Gov- 
ernment have  indulged  as  regards  Germany  and 
which  the  German  Government  will  accordingly  ap- 
ply against  England. 

''Naturally  the  Imperial  Government  are  not  will- 
ing to  waive  the  right  to  establish  the  presence  of 
contraband  in  the  cargoes  of  neutral  ships  and,  in 
cases  requiring  it,  to  take  any  action  necessary  on 
the  grounds  established.  Finally  the  German  Gov- 
ernment are  prepared  to  accord,  in  conjunction  with 
the  American  Government,  the  most  earnest  consid- 
eration to  any  measure  that  might  be  calculated  to 
insure  the  safety  of  legitimate  shipping  of  neutrals 
within  the  seat  of  war." 


30    AMERICA'S  CASE  AGAINST  GERMANY 

Efforts  in  this  direction,  however,  were  ham- 
pered by  the  *' misuse''  of  the  neutral  flag  on 
English  vessels  and  by  the  carriage  of  abso- 
lute contraband  in  neutral  bottoms.  As  for 
the  latter,  the  note  expressed  the  hope  ^Hhat  the 
American  Government  upon  reconsideration 
will  see  their  way  clear  to  a  measure  of  inter- 
vention in  accordance  with  the  spirit  of  true 
neutrality."  As  for  the  first,  German  efforts 
would  be  without  avail  if  neutral  vessels  were 
not  marked  in  a  manner  admitting  of  no  doubt ; 
and  the  protest  to  England  against  the  use  of 
the  American  flag  was  welcomed.^  The  sugges- 
tion was  made  that  the  United  States  provide  a 
convoy  for  American  vessels  carrying  no  con- 
traband; but  the  note  again  promised  future 
gratitude  on  the  part  of  the  German  Govern- 
ment if — and  this  of  course  would  be  just  as 
satisfactory  as  the  right  to  take  unrestricted 
measures  against  neutral  shipping — *'the  Amer- 
ican Government  would  urgently  advise  their 

•  In  the  expectation  that  England  would  not  use  the  American 
flag,  * '  the  commanders  of  the  German  submarines  have  been  in- 
structed, as  was  already  stated  in  the  note  of  fourth  instant, 
to  abstain  from  violence  to  American  merchant  vessels 'when 
they  are  recognizable  as  such." 


GEEMANY'S  SUBMARINE  "BLOCKADE^'      31 

merchant  vessels  to  avoid  the  English  seat  of 
maritime  war,  at  any  rate  until  the  flag  question 
is  settled.'^  ^ 

Germany  had  thrown  out  the  hint,  in  this  note, 
that  if  the  Allies  could  be  persuaded  to  adhere 
to  the  Declaration  of  London,  she  might  with- 
draw her  submarine  and  war  zone  order  and  it 
is  likely  that  at  any  time  during  the  war  she 
would  have  been  willing  to  make  this  concession 
if  permitted  to  import  foodstuffs,  and  if  the 
trade  in  munitions  between  the  United  States 
and  the  Allies  had  ceased.  Accordingly  Secre- 
tary of  State  Bryan  sent,  on  February  20th, 
identic  communications  to  Great  Britain  and 
Germany  asking  for  mutual  concessions  so  that 
an  international  modus  operandi  might  be 
achieved  which  would  not  be  fraught  with  such 

"This  note  complained  that  "the  British  Government  have 
armed  English  merchant  vessels  and  instructed  them  to  resist 
by  force  the  German  submarines.  In  these  circumstances  it  is 
very  difficult  for  the  German  submarines  to  recognize  neutral 
merchant  vessels  as  such,  for  even  a  search  will  not  be  possible 
in  the  majority  of  cases,  since  the  attacks  to  be  anticipated  in 
the  case  of  a  disguised  English  ship  would  expose  the  com- 
manders conducting  a  search  and  the  boat  itself  to  the  danger 
of  destruction,"  but  no  particular  stress  was  laid  upon  this 
point.  The  questions  of  international  law  will  receive  consid- 
eration later. 


32    AMERICANS  CASE  AGAINST  GERMANY 

a  menace  to  neutrals.  The  United  States  would 
not  surrender  any  rights,  but  modified  practices 
on  the  part  of  the  belligerents  were  asked  to 
safeguard  these  rights. 

Great  Britain  and  Germany  were  asked  to 
agree  (1)  not  to  sow  any  floating  mines  except 
within  common  range  of  harbors  for  defensive 
purposes;  (2)  not  to  use  submarines  to  attack 
merchant  vessels,  belligerent  or  neutral,  except 
to  enforce  the  right  of  visit  and  search;  and 
(3)  not  to  use  neutral  flags  as  a  ruse  de  guerre. 
Germany  on  her  part  was  asked  to  permit  all 
importations  of  food  to  be  consigned  to  agencies 
designated  by  the  United  States,  and  to  give 
assurances  that  the  food  would  not  be  requisi- 
tioned or  diverted  for  the  armed  forces,  but 
would  be  distributed  solely  to  retailers  whose 
licenses  would  permit  them  to  furnish  to  non- 
combatants  only.  The  concession  asked  from 
Great  Britain  was  that  food  would  not  be  placed 
upon  the  list  of  absolute  contraband,  and  that 
shipments  to  these  designated  agencies  would 
not  be  interfered  with.  It  was  made  clear  that 
the  United  States,  in  this,  the  first  of  its  pro- 
posals to  secure  mutual  concessions  from  the 


GERMANY'S  SUBMARINE  ^'BLOCKADE"      33 

belligerents  to  safeguard  American  interests 
and  change  conditions  whicli  caused  infringe- 
ment of  American  rights,  was  not  admitting  or 
denying  ^'any  belligerent  or  neutral  right  es- 
tablished by  the  principles  of  international 
law.'' 

The  reply  of  Germany  to  the  American  pro- 
posals was  made  on  February  28th.  It  agreed 
that  unanchored  mines  should  not  be  used,  but 
declined  to  forego  the  employment  of  mines  for 
offensive  purposes.  As  for  the  use  of  subma- 
rines against  merchant  vessels,  the  American 
suggestion  was  accepted  but  the  acquiescence 
was  immediately  negatived,  as  will  be  found  to 
be  the  case  in  a  great  many  of  the  German  com- 
munications, by  a  truly  remarkable  statement: 
^  ^  It  would  appear  to  be  a  matter  of  course  that 
such  mercantile  also  abstain  from  arming  them- 
selves and  from  all  resistance  by  force,  since 
such  procedure  contrary  to  international  law 
would  render  impossible  any  action  of  the  sub- 
marines in  accordance  with  international  law/' 

These  words  which  I  have  italicized  would 
seem  to  admit  absolutely  the  American  conten- 
tion that  it  was  illegal  to  sink  merchant  vessels 


34    AMERICA'S  CASE  AGAINST  GERMANY 

without  warning.  But  the  United  States  appar- 
ently took  no  advantage  of  the  admission  thus 
made.  Furthermore,  Germany  professed  her- 
self willing  to  accept  the  expedient  of  having 
agencies  designated  by  the  United  States  to 
receive  imports  of  food  stuffs,  but  *Hhe  enemy 
Governments  would  have  to  permit  the  free 
entry  into  Germany  of  the  raw  material  men- 
tioned in  the  free  list  of  the  Declaration  of 
London  and  to  treat  materials  included  in  the 
list  of  conditional  contraband  according  to  the 
same  principles  as  food  and  foodstuffs."  This, 
of  course,  did  not  begin  to  meet  the  American 
proposal  and  was  calculated  to  force  a  relaxa- 
tion of  the  British  measures  to  intercept  Ger- 
many's trade.  One  cannot  but  marvel  again  at 
the  ineptness  of  the  German  diplomacy.  Surely 
half  a  loaf  was  better  than  none.  The  damage 
done  by  the  use  of  mines  for  offensive  purposes 
and  submarines  for  attacks  on  merchant  vessels 
was  for  months  negligible ;  and  full  compliance 
with  the  suggestion  concerning  food  stuffs 
would  have  served  somewhat  to  conciliate 
American  opinion  and  could  have  forced  the 
United  States  to  protest  much  more  vigorously 


GERMANY^S  SUBMARINE  ^^BLOCKADE'^      35 

against  Great  Britain's  disregard  of  the  princi- 
ples of  the  Declaration  of  London.  Instead, 
there  came  what  was  practically  an  invitation 
that  the  Allies  in  their  turn  refuse  the  sugges- 
tions, but  the  note  did  not  fail  to  point  out 
again  that  the  hardships  on  neutrals  would  be 
lessened  if  ^^some  way  could  be  found  to  ex- 
clude the  shipping  of  munitions  of  war  from 
neutral  countries  to  belligerents  on  ships  of  any 
nationality. ' '  "^ 

As  I  have  already  said,  the  German  reply  was 
such  as  to  demand  a  refusal  on  the  part  of  Great 
Britain  and  this  came  on  March  13th.  The  op- 
portunity was  taken,  however,  for  a  statement 
regarding  the  position  of  the  Allies.  Attention 
was  called  to  the  treatment  by  Germany  of  civil- 

^  The  misrepresentation  of  the  German  reply  as  an  ac- 
ceptance of  the  American  proposals  has  not  been  confined  to 
Ambassador  Bernstorff  and  the  German  Foreign  Office.  In 
the  Senatorial  debate  on  the  War  Eesolution,  for  example, 
Senator  La  Follette  said:  "Without  quoting  at  length  the 
replies  of  the  Governments  of  Germany  and  Great  Britain,  it 
is  sufficient  to  say  that  under  date  of  March  1,  1915  [the  com- 
munication bears  the  date  of  February  28th],  the  German 
Government  replied  substantially  acceding  to  the  proposition 
made  by  the  Government  of  the  United  States,  and  on  March 
15  [March  13th]  the  British  Government  replied  substantially 
refusing  to  accede  to  our  request. ' '  Congressional  Record,  65th 
Cong.,  1st  Sess.,  p.  300   (April  4,  1917).     See  below,  p.  74  n. 


36    AMERICA'S  CASE  AGAINST  GERMANY 

ians  in  Belgium  and  the  North  of  France ;  to  in- 
humanities with  regard  to  prisoners ;  the  laying 
of  mines  on  the  high  seas ;  the  destruction,  with- 
out warning,  of  British  merchant  vessels;  the 
naval  bombardment  of  unfortified  towns,  and 
the  dropping  of  bombs  on  the  east  coast  of  Eng- 
land, where  there  were  no  strategic  points  to 
be  attacked.  Only  two  criticisms,  on  the  other 
hand,  had  been  made  concerning  British  action. 
It  was  true  that  mines  had  been  laid,  but  they 
became  harmless  when  adrift  and  had  not  been 
resorted  to  until  weeks  after  the  discovery  of 
the  German  practice. 

As  for  the  stoppage  of  foodstuffs  the  points 
of  international  law  were  not  ararued,  but  this 
important  consideration  was  adverted  to: 

''Inasmuch  as  the  stoppage  of  all  foodstuffs  is  an 
admitted  consequence  of  blockade,  it  is  obvious  that 
there  can  be  no  universal  rule  based  on  considera- 
tions of  morality  and  humanity,  which  is  contrary  to 
this  practice.  The  right  to  stop  foodstuffs  destined 
for  the  civil  population  must,  therefore,  in  any  case 
be  admitted  if  an  effective  'cordon'  controlling  inter- 
course with  the  enemy  is  drawn,  announced,  and 
maintained.  Moreover,  independently  of  rights  aris- 
ing from  belligerent  action  in  the  nature  of  blockade, 


GERMANY^S  SUBMARINE  "BLOCKADE'^      37 

some  other  nations,  differing  from  the  opinion  of 
the  Governments  of  the  United  States  and  Great 
Britain,  have  held  that  to  stop  the  food  of  the  civil 
population  is  a  natural  and  legitimate  method  of 
bringing  pressure  to  bear  on  an  enemy  country,  as  it 
is  upon  the  defense  of  a  besieged  town.'^ 

Prince  Bismarck  and  Count  Caprivi  were 
quoted  to  show  that  such  a  measure  *' presum- 
ably is  not  repugnant  to  German  morality/' 
The  latter  said,  for  example,  in  the  German 
Eeichstag  that ' '  the  private  introduction  of  pro- 
visions into  Paris  was  prohibited  during  the 
siege,  and  in  the  same  way  a  nation  would  be 
justified  in  preventing  the  import  of  food  and 
raw  produce.'*  And  the  practice  of  the  Union 
during  the  American  Civil  War  could  also  be 
cited  to  witness  the  weakness  of  the  German 
complaint. 

The  British  object,  finally,  would  be  attained 
without 

''sacrificing  neutral  ships  or  noncombatant  lives,  or 
inflicting  upon  neutrals  the  damage  that  must  be  en- 
tailed when  a  vessel  and  its  cargo  are  sunk  without 
notice,  examination,  or  trial. 

''I  must  emphasize  again  that  this  measure  is  a 


38    AMERICA'S  CASE  AGAINST  GERMANY 

natural  and  necessary  consequence  of  the  unprece- 
dented methods,  repugnant  to  all  law  and  morality, 
which  have  been  described  above,  which  Germany 
began  to  adopt  at  the  very  outset  of  the  war,  and 
the  effects  of  which  have  been  constantly  accumu- 
lating." 


Thus  ended  the  preliminary  exchanges  be- 
tween the  United  States  and  Germany.  Subma- 
rines were  already  being  used  against  merchant 
vessels ;  noncombatants  were  losing  their  lives ; 
the  measure  was,  by  German  admission,  in  vio- 
lation of  the  existing  rules  of  law,  although  sbe 
claimed  that  it  was  justified  to  meet  the  meas- 
ures of  her  enemies,  and  asked  that  neutrals 
relinquish  their  rights  in  order  not  to  suffer; 
but  no  American  citizens  were  killed,  and  the 
United  States  refrained  from  entering  any  fur- 
ther protest  on  humanitarian  grounds.  Ger- 
many had  been  told  that  she  would  be  held  to  a 
** strict  accountability,"  and  she  had  answered 
that  she  would  endeavor  to  respect  neutral 
rights,  but  that  with  the  trade  in  munitions  con- 
tinuing, she  would  not  be  responsible  for  any 
unfortunate  accidents.    It  was  now  a  question 


GERMANY'S  SUEMARINE  "BLOCKADE"      39 

of  how  soon  American  rights  would  be  directly 
infringed.  ^ 

'Before  March  10,  1915,  eighty-eight  British  merchant  ves- 
sels were  captured  or  destroyed.  Fifty-four  of  these  were 
taken  by  cruisers,  twelve  were  sunk  by  mines,  and  twenty-two 
were  victims  of  the  submarine  warfare.  The  gross  tonnage  was 
309,945.  This,  however,  did  not  begin  to  affect  England  seri- 
ously for  in  the  same  period  the  arrivals  and  departures  of  over- 
seas steamers  of  all  nationalities  of  more  than  300  tons  were 
4,745.  The  New  York  Times  Current  History,  Vol.  II,  p.  20 
(April,  1915). 


CHAPTER  III 

SOME   POINTS    OF    INTEKNATIONAL    LAW 

It  has  already  been  indicated  briefly  how  Ger- 
many's  submarine  warfare  did  not  achieve  even 
a  remote  compliance  with  the  principles  of  in- 
ternational law  defining  a  blockade,  and  that, 
therefore,  neutral  vessels  could  be  captured 
only  for  the  carriage  of  contraband.  The  Ger- 
man plea  that  any  war  measure,  with  the  pur- 
pose of  starving  her  into  submission  was  per  se 
illegal  has  been  mentioned.  This  will  be  re- 
turned to  later  when  it  will  be  necessary  to 
consider  in  some  detail  the  objections  to  the 
trade  in  munitions  and  the  attempt  to  justify 
the  submarine  outrages  on  the  ground  that 
they  were  a  proper  retaliation  for  England's 
extensions  of  international  law.  But  here  it 
may  be  appropriate  to  direct  attention  to  three 
problems  of  international  law  which  were  in- 

40 


POINTS  OF  INTEKNATIONAL  LAW       41 

volved  by  these  preliminary  exchanges:  The 
status  of  the  Declaration  of  London,  the  limita- 
tions (which  are  of  fundamental  importance) 
on  the  right  to  destroy  enemy  and  neutral  mer- 
chant vessels,  and  the  use  of  neutral  flags  on 
enemy  ships. 

The  purpose  of  the  Declaration  of  London, 
which  was  signed  by  ten  powers  (Germany, 
Austria-Hungary,  Spain,  France,  Great  Britain, 
the  United  States,  Italy,  Japan,  the  Netherlands 
and  Eussia)  was  twofold:  It  was  designed  in 
the  first  place  to  furnish  the  rules  to  govern 
the  International  Prize  Court — provided  for  by 
the  Second  Hague  Peace  Conference  but  never 
brought  into  existence — in  determining  appeals 
from  national  prize  courts  in  time  of  war ;  and 
secondly,  it  was  intended  to  codify  the  rules  of 
maritime  warfare,  the  assumption  being  that  the 
approval  of  these  ten  powers  would  lead  to 
its  acceptance  by  the  other  nations.  To  some 
extent  this  hope  was  not  unjustified  since,  al- 
though neither  state  had  ratified  the  instrument, 
it  was  proclaimed  as  the  rule  of  conduct  during 
the  Italian-Turkish  war ;  but  in  the  present  con- 


42    AMEEICA'S  CASE  AGAINST  GERMANY 

flict  it  has  been  more  honored  in  the  breach  than 
in  the  observance. 

Although  the  London  Naval  Conference  was 
called  by  Great  Britain,  which  extended  the  in- 
vitation to  the  other  nine  maritime  powers,  a 
prize  bill,  incorporating  the  provisions  of  the 
Declaration  was  rejected  by  the  House  of  Lords 
after  it  had  passed  the  Commons  (1911).  Pub- 
lic opinion  in  Great  Britain  was  unfavorable  to 
it — particularly  those  provisions  dealing  with 
contraband.  The  United  States  Senate,  how- 
ever, ratified  the  Declaration  and  both  Germany 
and  France  incorporated  it  in  their  naval  codes. 
Upon  the  outbreak  of  the  present  war,  the 
United  States  inquired  of  all  the  belligerents  as 
to  whether  they  would  agree  that  the  Declara- 
tion should  be  applicable  upon  condition  of  reci- 
procity, and  expressed  the  belief  "that  an  ac- 
ceptance of  the  laws  by  the  belligerents  would 
prevent  grave  misunderstandings  which  may 
arise  as  to  the  relations  between  neutral  powers 
and  belligerents. ' '  Germany  and  Austria-Hun- 
gary expressed  their  willingness,  but  Great 
Britain  refused  to  abide  by  a  number  of  provi- 
sions, the  most  important  being  those  which  de- 


POINTS  OF  INTEKNATIONAL  LAW        43 

fined  contraband  and  limited  the  doctrine  of 
continuous  voyage  to  absolute  contraband.  Con- 
sequently, on  October  22nd,  the  United  States 
notified  all  the  belligerents  that  the  sugggestion 
was  withdrawn  and  expressed  the  intention  of 
the  Government  to  ^^  insist  that  the  rights  and 
duties  of  the  United  States  and  its  citizens  in 
the  present  war  be  defined  by  the  existing  rules 
of  international  law  and  the  treaties  of  the 
United  States  irrespective  of  the  Declaration  of 
London.''  Actions  of  the  belligerents,  there- 
fore, could  not  be  deemed  illegal  simply  because 
they  traversed  the  provisions  of  the  Declaration 
of  London. 

The  importance  which  Germany  attached  to 
the  refusal  of  England  to  abide  by  the  Declara- 
tion of  London  may  be  attributed  to  two  of  the 
English  war  measures  which  the  Declaration 
forbade.  In  the  first  place,  England  at  once 
exercised  the  right  which  every  belligerent  in 
previous  wars  had  asserted — to  make  up  her 
own  lists  of  absolute  and  conditional  contra- 
band— and  as  is  the  case  each  time,  the  measure 
favored  her  own  rights  at  the  expense  of  the 
interests  of  opponents  and  neutrals.    There  was 


44    AMEEICA'S  CASE  AGAINST  GERMANY 

nothing  illegal  about  this,^  and  although  she  put 
on  her  list  articles  which  the  London  Declara- 
tion declared  not  to  be  contraband,  she  violated 
no  international  rule  since  the  Declaration  of 
London  is  not  binding.  Furthermore,  as  has 
already  been  indicated,  there  is  a  distinction  be- 
tween kinds  of  contraband,  the  classic  division 
being  threefold:  (1)  articles  primarily  used 
for  military  purposes  in  time  of  war;  (2)  ar- 
ticles of  use  for  warlike  or  peaceful  purposes, 
and  (3)  articles  of  no  utility  except  for  pur- 
poses of  peace.  If  consigned  to  the  belligerent 
country,  articles  of  absolute  contraband  are 
considered  as  meant  for  the  enemy  forces,  while 
articles  of  conditional  contraband  are  liable  to 
capture  if  intended  for  the  armed  forces,  and 
this  can  be  shown  by  their  consignment  to 
agents  of  the  government  or  to  naval  and  mili- 
tary stations.  In  two  respects  changed  cir- 
cumstances have  made  this  distinction  largely 
illusory :  easy  means  of  transportation  by  which 
articles  landed  at  an  unfortified  port,  some  dis- 
tance from  the  military  forces,  can  be  speedily 

*  Articles  23  and  25  of  the  Declaration  expressly  recognized 
the  right  to  extend  the  lists  of  both  kinds  of  contraband. 


POINTS  OF  INTERNATIONAL  LAW        45 

devoted  to  war-like  purposes,  and,  secondly,  the 
organization  of  a  country — such  as  was  effected 
by  the  decree  of  the  German  Bundesrath — so 
that  all  food  supplies  and  available  resources 
are  under  the  control  of  the  Government  and 
no  distinction  can  be  made  between  the  peace- 
ful and  war-like  purposes  of  imported  articles. 
The  British  Orders  in  Council,  in  addition 
to  extending  lists  of  contraband,  ignored  the 
distinction  between  the  two  kinds.  But,  more 
than  that,  they  applied  the  doctrine  of  continu- 
ous voyage  to  shipments  of  conditional  contra- 
band. The  Anglo-American  practice,  largely  in- 
corporated in  the  Declaration  of  London,  per- 
mits the  capture  of  absolute  contraband  of  war, 
when  destined  for  a  neutral  port  if  the  ultimate 
destination  of  the  cargo  is  a  belligerent  coun- 
try. But  this  doctrine  of  continuous  voyage, 
first  applied  in  the  French  courts  during  the 
Crimean  War,  much  extended,  as  is  well  known 
— and  as  England  reminded  us  with  her  later 
consent — during  the  American  Civil  War,  and 
used  by  Great  Britain  during  the  Boer  War, 
relates  only  to  absolute  contraband  and  accord- 
ing to  the  Declaration  of  London  may  not  apply 


46    AMERICA'S  CASE  AGAINST  GERMANY 

to  shipments  of  conditional  contraband.  This 
distinction  also,  Great  Britain  made  largely  il- 
lusory, directly  through  the  interference  with 
articles  of  conditional  contraband  consigned  to 
neutrals,  and  indirectly  through  the  extension 
of  the  absolute  contraband  lists.  The  power  of 
the  British  navy  was  used  practically  to  li- 
cense commerce  between  the  United  States  and 
neutrals  like  the  Netherlands,  Norway,  Sweden, 
and  Denmark,  and  in  order  to  continue  to  trade 
with  America  these  countries  were  compelled  to 
prohibit  the  export  of  articles  which  Great  Brit- 
ain would  not  allow  to  be  imported  with  the 
possibility  that  they  might  find  their  way  into 
the  territory  of  her  enemies. 

This  rather  summary  statement,  explains,  I 
think,  the  nature  of  the  first  British  extensions 
of  international  law  which  Germany  claimed 
gave  her  license  to  retaliate  by  submarine  war- 
fare. The  extensions  were  forbidden  by  tha 
Declaration  of  London,  and  strict  adherence  to 
this  instrument  would  have  been  greatly  to  the 
advantage  of  Germany,  since  she  could  have  had 
more  direct  trade  with  the  United  States  and 


POINTS  OF  INTEENATIONAL  LAW        47 

could  have  imported  commodities  of  American 
origin  from  the  adjacent  neutral  countries.  But 
since,  unratified  as  it  was,  the  Declaration  of 
London  was  not  binding,  it  had  no  sacrosanct 
character,  and  the  importance  given  it  in  the 
German  communications  should  be  taken  as  at- 
taching to  the  recognized  principles  of  interna- 
tional law  which  the  Declaration  sought  to,  and 
in  large  part  did,  codify. 

The  German  war  zone  decree  asserted  the 
right  to  destroy  all  enemy  merchant  ships  found 
in  the  restricted  area,  and  the  sinking  of  neu- 
tral vessels,  the  intimation  was  given,  might 
in  some  cases  be  unavoidable.  It  becomes  per- 
tinent to  inquire,  therefore,  as  to  the  right  of 
destruction  of  enemy  and  neutral  vessels  by  a 
belligerent  power  as  defined  by  undisputed  rules 
of  international  law. 

It  is  not  likely  that  the  proclamation  was  in- 
tended to  include  all  enemy  ships,  for  at  the 
Second  Hague  Peace  Conference  the  powers 
agreed  to  a  Convention  (Number  XI)  limiting 
the  right  of  capture  in  maritime  warfare  and 


48    AMERICA'S  CASE  AGAINST  GERMANY 

exempting  ^ ^vessels  charged  with  religious,  sci- 
entific, or  philanthropic  missions, ' '  and  ^  ^  vessels 
used  exclusively  for  fishing  along  the  coast  or 
small  boats  employed  in  local  trade '  ^  so  long  as 
they  take  no  part  in  hostilities.  Hospital  ships 
were  also  exempted  by  the  Geneva  Conventions, 
and  if  international  law  prohibits  capture,  de- 
struction is  obviously  illegal.  While  there  have 
been  instances  in  the  present  war  of  the  destruc- 
tion by  German  submarines  of  vessels  thus  ex- 
empted, it  is  more  pleasant  to  assume  that  their 
initial  threat  meant  to  make  these  exceptions.  ^ 
In  other  cases,  however,  the  right  to  destroy 
enemy  prizes  is  admitted,  although  it  is  equally 
well  recognized  that,  if  possible,  they  should  be 
brought  into  a  prize  court  to  have  the  legality  of 
the  capture  determined.  Some  authorities  have 
disapproved  of  the  practice  as  barbarous;  the 
German  publicists  Bluntschli  and  Heffter  ad- 
mitted it  only  in  cases  of  absolute  necessity,  and 
Perels  denied  it  until  the  prize  court  had  de- 
termined the  right  of  ownership.  In  recent 
wars  the  practice  has  been  indulged  in  and  its 

'When  submarine  depredations  began  under  the  decree  of 
January  31,  1917,  no  exceptions  were  made.     See  above,  p.  9. 


POINTS  OF  INTERNATIONAL  LAW        49 

legality  seems  to  be  beyond  doubt,^  but  it  is 
subject  to  a  fundamental  limitation :  the  destruc- 
tion cannot  take  place  unless  the  safety  of  the 
passengers  and  crew  is  assured.  An  able  au- 
thority— Professor  James  W.  Gamer — ^who  has 
made  an  exhaustive  investigation  of  the  litera- 
ture on  the  subject,  asserts  that  no  interna- 
tional law  authority,  admiralty  court,  or  gov- 
ernment (through  prize  regulations)  has  ever 
asserted  a  '^  right  to  destroy  merchant  vessels 
under  any  and  all  circumstances  and  subject  to 
no  restrictions.  The  universal  opinion  is  that 
destruction  is  permissible  only  in  certain  ex- 
ceptional cases  and  always  subject  to  the  ob- 
servance of  certain  rules  by  the  captor. ' '  ^  In 
every  case  the  persons  on  board  must  be  saved 
together  with  their  baggage.  The  various  Prize 
Codes — even  that  of  the  Imperial  German  Gov- 
ernment— recognize  this  fundamental  limita- 
tion. 

In  addition,  the  Prize  Codes  do  not  recognize 

'  In  the  Spanish  American  War  three  Spanish  merchant  ships 
were  sunk  by  an  American  cruiser  but  the  United  States  claimed 
that  the  vessels  were  transports. 

*  Garner,  ' '  International  Law  in  the  European  War :  War 
Zones  and  Submarine  Warfare,"  American  Journal  of  Inter- 
national Law,  Vol.  IX,  pp.  594,  616, 


50    AMERICA'S  CASE  AGAINST  GERMANY 

an  otherwise  unlimited  right  of  destruction. 
The  American  regulations  permit  it  if  there  are 
controlling  reasons  why  the  prize  may  not  be 
sent  in  for  adjudication  such  as  '^unseaworthi- 
ness, the  existence  of  infectious  diseases,  or  the 
lack  of  a  prize  crew^'  or  '^  imminent  danger  of 
recapture. '^  The  British  code  is  similar,  but 
both  stipulate  that  the  ship's  crew  and  papers 
are  to  be  removed ;  and  where  the  obligation  to 
safeguard  the  lives  of  noncombatants  is  not  ex- 
pressly affirmed,  it  is  understood.  Further- 
more, there  are  two  international  agreements  on 
the  subject. 

The  Convention  (Number  VI)  adopted  at  the 
Second  Hague  Conference  to  define  the  status 
of  enemy  merchant  ships  at  the  outbreak  of  hos- 
tilities declares  that  vessels  on  the  high  seas 
in  ignorance  of  the  outbreak  of  hostilities  can- 
not be  confiscated,  but  they  are  liable  to  deten- 
tion, requisition,  or  even  destruction,  upon  pay- 
ment of  compensation,  ''but  in  such  cases  pro- 
vision must  be  made  for  the  safety  of  the  per- 
sons on  board  as  well  as  the  security  of  the 
ship's  papers,''  and  the  specific  statement  of  the 
rule  in  this  instance  is  simply  an  affirmation  of 


POINTS  OF  INTEENATIONAL  LAW        51 

the  general  doctrine.  Again,  the  Convention 
(Number  XI)  restricting  the  right  of  capture 
provides  that  when  an  enemy  merchant  ship  is 
taken  by  a  belligerent  the  neutrals  in  the  crew 
cannot  be  made  prisoners  of  war,  and  the  same 
rule  applies  if  the  nationals  of  the  enemy  state 
make  a  formal  promise,  in  writing,  ^'not  to  un- 
dertake, while  hostilities  last,  any  service  con- 
nected with  the  operations  of  the  war/'  This, 
it  hardly  need  be  said,  definitely  negatives  the 
right  to  take  noncombatant  lives.  Finally,  at 
the  Second  Hague  Conference  the  Ajnerican 
delegation  pointed  out  that  there  were  not  ade- 
quate facilities  on  warships  to  care  for  persons 
taken  from  vessels  that  had  been  destroyed,  and 
that  apart  from  this  such  persons  would  be  ex- 
posed to  the  dangers  of  naval  battles.  This  was 
urged  against  the  right  of  destruction,  but,  '^In 
all  the  discussions  on  the  subject,  it  was  as- 
sumed that  the  right  of  destruction  was  condi- 
tioned upon  the  obligation  of  the  captor  to  pro- 
vide for  the  safety  of  the  crews  and  passengers, 
and  never  once  was  it  intimated  that  inability 
to  make  such  provision  constituted  a  sufficient 


52    AMERICA'S  CASE  AGAINST  GERMANY 

defense  against  disregard  of  the  obligation. ' ' ' 
It  is,  then,  to  repeat,  not  the  destruction  of  en- 
emy prizes  which  is  unlawful,  and  although  this 
might,  contrary  to  previous  practice,  be  illegally 
done  in  every  case  by  the  submarines,  there 
would  be  nothing  wanton  or  uncivilized  about 
it;  the  failure  to  regard  the  sacred  immunities 
of  noncombatants  is  what  condemns  the  German 
methods. 

So  far  as  neutral  prizes  are  concerned,  the 
same  principles  apply,  although  much  more  rig- 
orously. Up  until  the  19th  century,  there  were 
no  instances  of  the  destruction  of  neutral  ves- 
sels, and  the  first  exercise  of  the  right  other 
than  sporadically  was  during  the  Eusso-Japan- 
ese  War.  This  w^as  authorized  by  the  Eussian 
prize  code  in  exceptional  cases  only,  however, 
after  the  commander  ^'has  taken  off  all  persons 
on  board,  and  as  much  of  the  cargo  as  possible, 
and  arranged  for  the  safety  of  the  vessePs  pa- 
pers and  any  other  objects  which  may  be  neces- 
sary for  throwing  light  on  the  case  at  the  in- 
quiry to  be  instituted  in  accordance  with  the 
procedure  in  prize  cases. ' '    No  distinction  was 

•*  Garner,  op.  cit.,  p.  626. 


POINTS  OF  INTEENATIONAL  LAW        53 

made  between  enemy  and  neutral  vessels,  but 
after  Great  Britain  protested,  the  Eussian  regu- 
lations were  modified  so  as  to  permit  the  de- 
struction of  the  latter  only  in  the  ^'direst  ne- 
cessity." 

The  naval  codes  of  a  number  of  other  mari- 
time powers  admitted  the  destruction  in  very 
exceptional  cases  of  ships  which  were  liable  to 
condemnation  (for  carrying  contraband,  breach 
of  blockade,  etc.),  and  upon  this  question  an 
agreement  was  reached  in  the  Declaration  of 
London,  which  allowed  destruction  in  cases  of 
''exceptional  necessity '^ — if  taking  the  vessel 
into  port ' 'would  involve  danger  to  the  safety  of 
the  warship  or  to  the  success  of  the  operations 
in  which  she  is  engaged  at  the  time ' ' ;  but  before 
the  vessel  may  be  destroyed  ^^all  persons  on 
hoard  must  he  placed  in  safety  and  all  the  ship's 
papers  and  other  documents  which  the  parties 
interested  consider  relevant  for  the  purpose  of 
deciding  on  the  validity  of  the  capture  must  be 
taken  on  board  the  warship"  (Articles  49  and 
50). 

This  was  apparently  satisfactory  to  Germany 


54    AMERICA'S  CASE  AGAINST  GERMANY 

as  her  delegates  signed  the  Declaration  and 
she  professed  herself  willing  to  accede  to  it  at 
the  beginning  of  the  war.  In  fact,  a  German 
memorandum  on  the  subject,  presented  to  the 
Conference,  was  identical  with  the  article  as 
finally  agreed  upon,  and  the  German  Prize  Code 
of  1909,  published  on  August  3,  1914,  recog- 
nized the  right  of  destruction  with  terms  but 
little  broader  than  those  of  the  Declaration  of 
London.^  In  short,  this  maritime  war  measure, 
of  recent  origin,  of  legality  that  has  been  denied 
by  authoritative  writers  and  important  states,  is 
not  unlimited ;  but  there  is  universal  agreement 
that  the  lives  of  those  on  board  must  be  safe- 
guarded, whether  enemy  or  belligerent. 

Official  notice  was  taken  by  the  United  States 
of  the  German  complaint  that  the  British  Gov- 
ernment had  authorized  the  use  of  the  neutral 
flag  as  a  ruse  de  guerre,  the  particular  incident 
cited  being  the  action  of  the  captain  of  the  Lusi- 
tania  in  raising  the  American  flag  as  the  vessel 

'Secretary  Lansing's  Lusitania  note  of  June  9th  reminded 
the  Imperial  Government  of  the  code  which  had  been  issued 
providing  that  **  before  destruction  all  persons  on  board,  if 
possible  with  their  personal  effects,  are  to  be  placed  in  safety. ' ' 


POINTS  OF  INTERNATIONAL  LAW       55 

approached  the  British  coast  in  order  to  escape 
an  attack  by  a  German  submarine.  '^ 

Secretary  Bryan  reserved  the  question  of  le- 
gahty,  and  while  admitting  the  propriety  of 
the  occasional  use  of  the  flag  in  order  to  deceive 
an  approaching  enemy,  objected  to  the  "explicit 
sanction  by  a  belligerent  government  for  its 
merchant  ships  generally  to  fly  the  flag  of  a 
neutral  power  within  certain  portions  of  the 
high  seas  which  are  presumed  to  be  frequented 
with  hostile  warships."  This,  he  continued, 
"jeopardizes  the  vessels  of  the  neutrals  vis- 
iting those  waters  in  a  peculiar  degree  by  rais- 
ing the  presumption  that  they  are  of  belliger- 
ent nationality  regardless  of  the  flag  which  they 
may  carry.  .  .  . 

"A  policy  such  as  the  one  which  his  Maj- 

'  On  February  7th  the  British  Foreign  Office  issued  a  memo- 
randum in  which  it  was  said  that  the  use  of  a  neutral  flag  is, 
with  certain  limitations,  established  as  a  valid  riise  de  guerre. 
''The  only  effect  in  the  case  of  a  merchantman  of  wearing  a 
flag  other  than  her  national  flag  is  to  compel  the  enemy  to  fol- 
low the  ordinary  obligations  of  naval  warfare,  and  to  satisfy 
himself  as  to  the  nationality  of  the  vessel  and  the  character  of 
the  cargo  by  examination  before  capturing  her  and  taking  her 
into  a  Prize  Court  for  adjudication  .  .  .  No  breach  of  interna- 
tional law  is  thereby  committed,"  There  were,  furthermore, 
several  instances  in  the  early  days  of  the  war  of  the  use  by 
German  vessels  of  neutral  flags. 


56    AMERICA'S  CASE  AGAINST  GERMANY 

esty^s  Government  is  said  to  intend  to  adopt, 
would,  if  the  declaration  of  the  German  Admi- 
ralty is  put  in  force,  it  seems  clear,  afford  no 
protection  to  British  vessels,  while  it  would 
be  a  serious  and  constant  menace  to  the  lives 
and  vessels  of  American  citizens.''  A  failure 
to  comply  with  this  request  would  '^impose 
upon  the  Government  of  Great  Britain  a  meas- 
ure of  responsibility  for  the  loss  of  American 
lives  and  vessels  in  case  of  an  attack  by  a  Ger- 
man naval  force. ' '  ^ 

The  practice  of  using  the  neutral  flag  was 
formerly  quite  common,  and  warships  are  per- 
mitted to  assume  colors  other  than  their  own, 
so  long  as  they  raise  their  true  flags  before 
going  into  action.  Great  Britain's  reply,  made 
on  February  19th,  said  that  the  British  shipping 
act  permitted  the  use  of  the  British  flag  by 
foreign  merchant  vessels  for  the  purpose  of  es- 
caping capture ;  that  other  nations  had  similar 
legislation;  that  Union  merchant  ships  during 
the  American  Civil  War  had  availed  themselves 

"This  protest  (February  10th)  is  an  additional  indication 
that  the  American  ' '  strict  accountability ' '  note  of  the  same 
day  was  more  concerned  with  the  safety  of  American  vessels 
than  with  the  safety  of  American  citizens  on  enemy  vessels. 


POINTS  OF  INTEENATIONAL  LAW        57 

of  this  privilege,  and  that  it  would  be  unreason- 
able to  expect  the  British  Government  to  enact 
legislation  forbidding  the  use  of  foreign  flags 
by  her  vessels.  In  the  case  of  the  Lusitania 
American  passengers  had  requested  that  the 
flag  be  raised  and  this  was  done  without  any 
advice  from  the  Government.  The  communica- 
tion then  proceeded  to  state  correctly  certain 
fundamental  principles  of  international  law: 

''Now  that  the  German  Government  have  an- 
nounced their  intention  to  sink  merchant  vessels  at 
sight,  with  their  noncombatant  crews,  cargoes,  and 
papers,  a  proceeding  hitherto  regarded  by  the  opinion 
of  the  world  not  as  war,  but  as  piracy,  it  is  felt  that 
the  United  States  Government  could  not  fairly  ask 
the  British  Government  "to  order  British  merchant 
vessels  to  forego  the  means — always  hitherto  permit- 
ted— of  escaping  not  only  capture  but  the  much  worse 
fate  of  sinking  and  destruction.  .  .  . 

''The  obligation  upon  a  belligerent  warship  to  as- 
certain definitely  for  itself  the  nationality  and  char- 
acter of  a  merchant  vessel  before  capturing  it,  and 
a  fortiori  before  sinking  and  destroying  it,  has  been 
universally  recognized.  If  that  obligation  is  ful- 
filled, hoisting  a  neutral  flag  on  board  a  British  ves- 
sel can  not  possibly  endanger  neutral  shipping;  and 
the  British  Government  hold  that  if  loss  to  neutrals 


58    AMERICA'S  CASE  AGAINST  GERMAXY 

is  caused  by  disregard  of  this  obligation,  it  is  upon 
the  enemy  vessel  disregarding  it  and  upon  the  Gov- 
ernment giving  orders  that  it  should  be  disregarded 
that  the  sole  responsibility  for  injury  to  neutrals 
ought  to  rest." 

This  is  a  perfectly  accurate  statement  of  the 
recognized  international  rules.  If  the  flag  of 
the  United  States  was  never  used  as  a  ruse  de 
guerre,  American  interests  could  not  be  in- 
volved, through  ^'an  unfortunate  mistake''  by 
the  submarine  warfare.  But  the  rules,  not  only 
of  international  law  but  also  of  humanity,  put 
war  vessels  under  an  obligation  to  examine  a 
merchant  ship  before  capturing  it,  and  in  case 
exceptional  circumstances  justify  its  destruc- 
tion, to  put  the  passengers  and  crew  in  places  of 
safety  before  this  may  be  done.  Germany  has 
no  right  to  sink  an  English  merchant  vessel 
without  warning  and  without  safeguarding  the 
lives  of  noncombatants,  and  one  cannot,  there- 
fore, reach  any  conclusion  other  than  that  the 
abandonment  by  British  ships  of  the  use  of  the 
American  flag  would  make  it  possible  for  Ger- 
many to  violate  international  law  with  im- 
punity, so  far  as  American  interests  were  con- 


POINTS  OF  INTERNATIONAL  LAW        59 

cerned,  except  in  cases  where  American  prop- 
erty or  citizens  were  on  board  of  the  British 
ship.  And  if  British  insistence  upon  the  right 
to  use  the  American  flag  would  contribute  to 
compelling  the  submarine  to  make  an  examina- 
tion and  to  take  care  of  the  passengers  and  crew 
in  order  not  to  affect  neutrals,  then  it  was  jus- 
tified on  this  basis,  apart  from  its  legality. 
The  ground  of  the  German  protest,  to  repeat, 
was  that  the  submarines  should  be  permitted  to 
violate  international  law  with  reduced  chances 
of  affecting  the  United  States ;  and  the  ground 
of  the  American  protest  was  that  by  the  relin- 
quishment on  the  part  of  British  ships  of 
the  use  of  the  American  flag  the  chances  of 
American  interests  being  affected  would  be 
more  remote. 


CHAPTER   IV 

THE   ^^LUSITANIA'^   AND   OTHER   OUTRAGES 

American  rights  were  first  infringed  on 
March  28th  when  the  British  steamer  Falaha 
was  sunk  by  a  German  submarine  and  an 
American  citizen — Leon  C.  Thrasher — ^was 
drowned.  Just  a  month  later,  the  American 
ship  Cushing  was  attacked  by  a  German  aero- 
plane, but  no  loss  of  life  was  occasioned.  On 
May  1st,  however,  the  American  vessel  Gulf- 
light  was  torpedoed  by  a  submarine  and  three 
American  citizens  met  their  death.  Finally,  on 
May  7th,  the  Lusitania  was  sunk  without  warn- 
ing, and  more  than  one  thousand  innocent  men, 
women  and  children  were  killed,  more  than  one 
hundred  of  them  being  American  citizens. 

The  United  States  and  Germany  had  already 
had  some  correspondence  over  the  sinking,  on 
January  27th,  of  the  American  ship  William  P. 
Frye  by  the  German  auxiliary  cruiser  Prinz 

60 


THE  "LUSITANIA"— OTHER  OUTRAGES      61 

Eitel  Frederick,  A  bill,  claiming  the  value  of 
the  ship  and  some  compensation  for  damages 
occasioned  by  its  sinking  (the  personal  effects 
of  the  captain,  etc.),  was  presented  on  April  3d 
and  Germany  very  promptly  replied  (April 
4th)  assuming  liability  for  the  claim.  I  have 
referred  above  to  her  interesting  but  inconsist- 
ent attitude  in  justifying  the  destruction  of  this 
vessel  with  a  cargo  of  wheat  on  practically  the 
same  grounds  as  those  taken  by  Great  Britain 
in  claiming  the  right  to  detain  foodstuffs  going 
into  Germany.  But  the  phases  of  the  case  per- 
tinent here  are  that  Germany  asserted  that 
since  the  auxiliary  cruiser  was  unable  to  take 
the  vessel  into  port,  the  sinking  was  justified 
under  the  Declaration  of  London,  and  in  accord- 
ance with  the  German  Prize  Code  and  Article 
50  of  that  instrument,  *'the  duties  devolving 
upon  the  cruiser  before  the  destruction  of  the 
ship,"  as  to  the  safety  of  the  persons  on  board 
and  the  ship's  papers  were  fulfilled.  In  the 
second  place,  Germany  admitted  that  she  was 
liable  for  damages  under  Article  13  of  the  Prus- 
sian-American treaty  of  friendship  and  com- 
merce of  July  11,  1799,  taken  in  connection  with 


62    AMERICA'S  CASE  AGAINST  GERMANY 

Article  12  of  the  Prussian-American  treaty  of 
commerce  and  navigation  of  May  1, 1828. 

These  stipulations,  which  were  called  to  the 
attention  of  the  United  States  by  Germany,  are 
very  remarkable.  The  treaty  of  1828  revived 
certain  clauses  in  the  treaties  of  1785  and  1799 
which  provided  that  American  citizens  may 
trade  with  Germany's  enemies  ^'as  in  full 
peace''  and  this  would  seem  to  estop  Germany 
from  protesting  against  the  trade  in  munitions. 
Under  the  treaties,  no  articles  in  American  ves- 
sels ''shall  be  deemed  contraband,  so  as  to  in- 
duce confiscation  or  condemnation  and  a  loss  of 
property  to  individuals."  Nevertheless,  Ger- 
many has  the  right  to  detain  such  vessels,  sub- 
ject to  a  reasonable  compensation  for  loss  to 
the  proprietors,  and  is  allowed  to  use  the  mili- 
tary stores  upon  payment  of  compensation. 
''But  in  the  case  supposed  of  a  vessel  stopped 
for  articles  of  contraband,  if  the  master  of  the 
vessel  stopped  will  deliver  out  the  goods  sup- 
posed to  be  of  contraband  nature,  he  shall  be 
admitted  to  do  it,  and  the  vessel  shall  not  in 
that  case  be  carried  into  any  port,  nor  further 
detained,  but  shall  be  allowed  to  proceed  on  her 


THE  "LUSITANIA^'— OTHER  OUTRAGES      63 

voyage/'  Two  points  of  controversy  arose:  as 
to  the  manner  of  settling  the  amount  of  dam- 
ages and  as  to  the  nature  of  Germany's  lia- 
bility. 

The  United  States,  in  view  of  the  fact  that 
the  treaty  was  involved,  objected  to  adjudica- 
tion by  a  German  prize  court  but  insisted  on 
arbitration,  and  Germany  agreed  to  this  in 
principle.  The  other  important  difference  was 
that  the  United  States  claimed  that  the  sink- 
ing of  the  Frye  violated  the  treaty,  but  Ger- 
many asserted  that  under  the  treaty  the  sink- 
ing was  justified  subject  to  the  payment  of 
compensation.  In  either  event,  however,  the 
treaty  provisions  are  applicable  to  submarine 
warfare  and  give  the  United  States  a  claim 
for  damages  even  in  those  cases  where  the  de- 
struction of  a  neutral  prize  would  be  justified 
by  the  Declaration  of  London.  Whether  the 
treaty  permits  destruction  or  simply  imposes 
liability,  it  does  prohibit  any  indiscriminate 
warfare  which  would  be  directed  against 
American  vessels,  and  more  than  that,  it  ex- 
pressly denies  the  legality  of  sinking  without 


64    AMERICA'S  CASE  AGAINST  GERMANY 

saving  the  noncombatants  on  board,  for  Ar- 
ticle 15  provides: 

**And  to  prevent  entirely  all  disorder  and  vio- 
lence in  such  cases,  it  is  stipulated  that  when  the  ves- 
sels of  the  neutral  party,  sailing  without  convoy,  shall 
be  met  by  any  vessel  of  war,  public  or  private,  of  the 
other  party,  such  vessel  of  war  shall  not  send  more 
than  two  or  three  men  in  their  boat  on  board  the 
said  neutral  vessel,  to  examine  her  passports  and 
documents.  And  all  persons  belonging  to  any  vessel 
of  war,  public  or  private,  who  shall  molest  or  insult 
in  any  manner  whatever  the  people,  vessels,  or  ef- 
fects of  the  other  party,  shall  be  responsible  in  their 
persons  and  property,  for  damages  and  interest,  suf- 
ficient security  for  which  shall  be  given  by  all  com- 
manders of  private  armed  vessels  before  they  are 
commissioned. ' ' 

America's  case  against  the  use  of  submarines 
by  Germany,  however,  was  rested  upon  general 
principles  of  international  law  and  the  dictates 
of  humanity,  and  in  the  correspondence  these 
treaties  are  not  stressed.  But  it  may  be  re- 
marked here  that  a  submarine  '' blockade '^  ap- 
plying to  American  ships  cannot  but  violate 
these  old  instruments  the  binding  character  of 
which  Germany  admitted  on  her  own  initiative. 


THE  "LUSITANIA"— OTHEE  OUTRAGES      65 

After  the  sinking  of  the  Lusitania  and  before 
an  American  protest  could  be  made,  two  com- 
munications were  received  from  Germany. 
The  first  expressed  *' deepest  sympathy  at  the 
loss  of  lives  on  board  the  Lusitania,^ ^  but  main- 
tained that  the  responsibility  rested  with  the 
British  Government,  which,  through  its  plan  of 
starving  the  civilian  population  of  Germany, 
had  forced  Germany  to  resort  to  retaliatory 
measures.  The  practice  of  arming  British  ves- 
sels made  it  impossible  to  treat  them  as  mer- 
chant ships;  and  Germany  regretted  ^^that 
Americans  felt  more  inclined  to  trust  to  Eng- 
lish promises  than  to  pay  attention  to  warn- 
ings from  the  German  side. ' '  In  the  second 
communication,  Germany  explained  her  policy 
with  respect  to  neutral  ships  in  the  ^^war  zone.'' 
Instructions  had  been  issued  to  avoid  attacks 
on  neutral  vessels  under  all  circumstances. 
^'Even  when  such  ships  have  contraband  of 
war  on  board  they  are  dealt  with  by  subma- 
rines solely  according  to  the  rules  of  interna- 
tional law  applying  to  prize  warfare.*'  In  the 
event  of  an  unfortunate  accident  regret  would 
be  expressed  and  damages  afforded,  and  when 


6G    AMEEICA'S  CASE  AGAINST  GERMANY 

there  was  a  dispute  as  to  the  facts,  Germany 
was  willing  to  submit  the  questions  to  an  Inter- 
national Commission  of  Inquiry  as  provided 
by  the  Hague  Convention  for  the  Pacific  Settle- 
ment of  International  Disputes. 

The  protest  of  the  United  States  was  sent  to 
Germany  on  May  13th,  after  six  days  ^  delibera- 
tion by  President  Wilson.  It  referred  in  per- 
haps too  fulsome  terms  to  ^Hhe  humane  and 
enlightened  attitude  hitherto  assumed  by  the 
Imperial  German  Government  in  matters  of  in- 
ternational right,"  and  declared  that 

*' having  understood  the  instructions  of  the  Imperial 
German  Government  to  its  naval  commanders  to  be 
upon  the  same  plane  of  humane  action  prescribed  by 
the  naval  codes  of  other  nations,  the  Government  of 
the  United  States  was  loath  to  believe — it  cannot  now 
bring  itself  to  believe — that  these  acts,  so  absolutely 
contrary  to  the  rules,  the  practices,  and  the  spirit  of 
modern  warfare,  could  have  the  countenance  or  sanc- 
tion of  that  great  Government.  It  feels  it  to  be  its 
duty,  therefore,  to  address  the  Imperial  German  Gov- 
ernment concerning  them  with  the  utmost  frankness 
and  in  the  earnest  hope  that  it  is  not  mistaken  in 
expecting  action  on  the  part  of  the  Imperial  German 
Government  which  will  correct  the  unfortunate  im- 


THE  "LUSITANIA'^— OTHER  OUTRAGES      67 

pressions  which  have  been  created  and  vindicate 
once  more  the  position  of  that  Government  with  re- 
gard to  the  sacred  freedom  of  the  seas." 

Germany  had  already  been  informed  that  the 
United  States  could  not  consent  to  ^^an  abbre- 
viation of  the  rights  of  American  shipmasters 
or  of  American  citizens  bound  on  lawful  er- 
rands as  passengers  on  merchant  ships  of  bel- 
ligerent nationality''  through  the  adoption  of 
^ '  methods  of  retaliation  which  go  much  beyond 
the  ordinary  methods  of  warfare  at  sea/'  and 
that  the  Imperial  German  Government  would 
be  held  ''to  a  strict  accountability  for  any  in- 
fringement of  those  rights,  intentional  or  inci- 
dental. ' '    The  United  States,  the  note  continued, 

''does  not  understand  the  Imperial  German  Govern- 
ment to  question  those  rights.  It  assumes,  on  the  con- 
trary, that  the  Imperial  Government  accept,  as  of 
course,  the  rule  that  the  lives  of  noncombatants, 
whether  they  be  of  neutral  citizenship  or  citizens  of 
one  of  the  nations  at  war,  can  not  lawfully  or  right- 
fully be  put  in  jeopardy  by  the  capture  or  destruc- 
tion of  an  unarmed  merchantman,  and  recognize  also, 
as  all  other  nations  do,  the  obligation  to  take  the 
usual   precaution   of   visit   and   search   to   ascertain 


68    AMEEICA'S  CASE  AGAINST  GERMANY 

whether  a  suspected  merchantman  is  in  fact  of  bel- 
ligerent nationality  or  is  in  fact  carrying  contraband 
of  war  under  a  neutral  flag. 

"The  Government  of  the  United  States,  therefore, 
desires  to  call  the  attention  of  the  Imperial  German 
Government  with  the  utmost  earnestness  to  the  fact 
that  the  objection  to  their  present  method  of  attack 
against  the  trade  of  their  enemies  lies  in  the  prac- 
tical impossihility  of  employing  submarines  in  the 
destruction  of  commerce  without  disregarding  those 
rules  of  fairness,  reason,  justice,  and  humanity 
which  all  modern  opinion  regards  as  imperative.  It 
is  practically  impossible  for  the  officers  of  a  subma- 
rine to  visit  a  merchantman  at  sea  and  examine  her 
papers  and  cargo.  It  is  practically  impossible  for 
them  to  make  a  prize  of  her ;  and,  if  they  can  not  put 
a  prize  crew  on  board  of  her,  they  can  not  sink  her 
without  leaving  her  crew  and  all  on  board  of  her  to 
the  mercy  of  the  sea  in  her  small  boats.  These  facts, 
it  is  understood  the  Imperial  German  Government 
frankly  admit.  We  are  informed  that  in  the  instances 
of  which  we  have  spoken  time  enough  for  even  that 
poor  measure  of  safety  was  not  given,  and  in  at  least 
two  of  the  cases  cited  not  so  much  as  a  warning  was 
received.  Manifestly  submarines  can  not  be  used 
against  merchantmen,  as  the  last  few  weeks  have 
shown,  without  an  inevitable  violation  of  many  sacred 
principles  of  justice  and  humanity.*' 


THE  "LUSITAlSriA"— OTHEK  OUTRAGES      69 

Particular  attention  should  be  given  the  itali- 
cized clauses,  for  they  marked  a  position  which 
President  Wilson  abandoned  in  later  exchanges, 
namely,  that  submarines  should  not  be  used 
against  commerce  at  all,  but  that  their  opera- 
tions should  be  confined  to  war  vessels.  Had 
this  position  thus  asserted — and  based,  al- 
though perhaps  vaguely,  on  the  rights  of  hu- 
manity, of  all  noncombatants  rather  than  sim- 
ply American  citizens — been  maintained,  the 
case  of  the  Government  would  have  been 
stronger  and  the  regrettable  controversy  over 
armed  merchantmen  would  probably  not  have 
arisen.  Nevertheless,  while  in  some  places  a 
vindication  of  public  right  and  a  condemnation 
of  the  illegal  character  of  the  German  meas- 
ures no  matter  what  noncombatant  nationals 
were  affected,  the  note  laid  greatest  stress  upon 
the  ^'indisputable  rights^'  of  American  citizens 
to  travel 

*' wherever  their  legitimate  business  calls  them  upon 
the  high  seas,  and  exercise  those  rights  in  what  should 
be  the  well- justified  confidence  that  their  Hves  will 
not  be  endangered  by  acts  done  in  clear  violation  of 
universally    acknowledged    international    obligations, 


70    AMERICA^S  CASE  AGAINST  GERMANY 

and  certainly  in  the  confidence  that  their  own  Gov- 
ernment will  sustain  them  in  the  exercise  of  their 
rights." 

The  advertisement  of  the  German  Embassy, 
appearing  in  the  newspapers  before  the  liner 
sailed  and  warning  Americans  to  keep  away 
from  the  war  zone,  was  referred  to  as  a  com- 
munication of  ''surprising  irregularity"  and  it 
was  pointed  out 

''that  no  warning  that  an  unlawful  and  inhumane 
act  will  he  committed  can  possibly  be  accepted  as  an 
excuse  or  palliation  for  that  act  or  as  an  abatement 
of  the  responsibility  for  its  commission. 

"Long  acquainted  as  this  Government  has  been 
with  the  character  of  the  Imperial  German  Govern- 
ment and  with  the  high  principles  of  equity  by  which 
they  have  in  the  past  been  actuated  and  guided,  the 
Government  of  the  United  States  can  not  believe  that 
the  commanders  of  the  vessels  which  committed  these 
acts  of  lawlessness  did  so  except  under  a  misappre- 
hension of  the  orders  issued  by  the  Imperial  German 
naval  authorities.  It  takes  it  for  granted  that,  at 
least  within  the  practical  possibilities  of  every  such 
case,  the  commanders  even  of  submarines  were  ex- 
pected to  do  nothing  that  would  involve  the  lives  of 
noncombatants  or  the  safety  of  neutral  ships,  even 
at  the  cost  of  failing  of  their  object  of  capture  or 


THE  "LUSITANIA"— OTHER  OUTRAGES      71 

destruction.  It  confidently  expects,  therefore,  that 
the  Imperial  German  Government  will  disavow  the 
acts  of  which  the  Government  of  the  United  States 
complains,  that  they  will  make  reparation  so  far  as 
reparation  is  possible  for  injuries  which  are  without 
measure,  and  that  they  will  take  immediate  steps  to 
prevent  the  recurrence  of  anything  so  obviously  sub- 
versive of  the  principles  of  warfare  for  which  the 
Imperial  German  Government  have  in  the  past  so 
wisely  and  so  firmly  contended." 

And  the  note  closed  with  the  following  strong 
paragraphs : 

''Expressions  of  regret  and  offers  of  reparation  in 
case  of  the  destruction  of  neutral  ships  sunk  by  mis- 
take, while  they  may  satisfy  international  obligations, 
if  no  loss  of  life  results,  can  not  justify  or  excuse  a 
practice,  the  natural  and  necessary  effect  of  which  is 
to  subject  neutral  nations  and  neutral  persons  to 
new  and  immeasurable  risks. 

"The  Imperial  German  Government  will  not  ex- 
pect the  Government  of  the  United  States  to  omit 
any  word  or  any  act  necessary  to  the  performance 
of  its  sacred  duty  of  maintaining  the  rights  of  the 
United  States  and  its  citizens  and  of  safeguarding 
their  free  exercise  and  enjoyment." 

Germany's  reply  was  made  on  May  28th.  It 
disclaimed,  first,  with  regard  to  the  Gushing 


72    AMERICA'S  CASE  AGAINST  GERMANY 

and  GulfligJit  any  intention  to  attack  neutral 
vessels;  explicit  instructions  had  been  given 
to  the  contrary  and  if  these  vessels  came  to 
grief  through  no  fault  of  their  own,  *^regref 
would  be  expressed  and  indemnification  prom- 
ised if  the  facts  justified  it.^  In  the  case  of 
the  Faldba  the  submarine  commander  intended 
to  give  the  passengers  and  crew  an  opportunity 
to  save  themselves,  but  when  the  English  cap- 
tain sent  up  rockets  for  help,  warning  was 
given  that  the  ship  would  be  sunk  in  ten  min- 
utes, and  actually,  it  was  claimed,  twenty-three 
minutes  were  allowed. 

With  regard  to  the  loss  of  life  on  the  Lusi- 
tania,  Germany,  it  was  said,  had  already  ex- 
pressed regret  to  the  neutral  governments 
whose  nationals  had  been  killed.  Important 
facts  in  connection  with  the  Lusitania,  how- 
ever, had  escaped  the  attention  of  the  United 

*  A  communication  concerning  the  GulfligJit  and  Cushing  was 
sent  to  Washington  three  days  later.  The  Gulflight  had  no 
neutral  markings,  was  apparently  accompanied  by  two  British 
convoy  ships,  and  the  American  flag  was  not  noticed  until  the 
moment  of  attack.  "According  to  the  attendant  circumstances 
there  can  be  no  doubt  that  the  attack  is  not  attributed  to  the 
fault  of  the  commander,  but  to  an  unfortunate  accident." 
Regret  was  expressed  and  compensation  promised  to  American 
citizens  who  sustained  damage. 


THE  "LUSITANIA"— OTHER  OUTRAGES      73 

States,  and  these  Germany  proceeded  to  state : 
The  Lusitania  was  a  large  and  fast  commerce 
steamer,  constructed  with  government  funds  as 
an  auxiliary  cruiser;  when  she  left  New  York, 
guns  were  on  board,  mounted  under  the  decks 
and  masked;  furthermore,  in  view  of  the  in- 
structions of  the  British  Admiralty  that  mer- 
chant vessels  should  attack  submarines  by 
ramming  them, 

''the  Imperial  Government  is  unable  to  consider 
English  merchant  vessels  any  longer  as  'undefended 
territory'  in  the  zone  of  maritime  war  designated  by 
the  Admiralty  Staff  of  the  Imperial  German  Navy, 
the  German  commanders  are  consequently  no  longer 
in  a  position  to  observe  the  rules  of  capture  other- 
wise usual  and  with  which  they  invariably  complied 
before  this.  Lastly,  the  Imperial  Government  must 
specially  point  out  that  on  her  last  trip  the  Lusitania, 
as  on  earlier  occasions,  had  Canadian  troops  and  mu- 
nitions on  board,  including  no  less  than  5,400  cases 
of  ammunition  destined  for  the  destruction  of  brave 
German  soldiers  who  are  fulfilling  with  self-sacrifice 
and  devotion  their  duty  in  the  service  of  the  Father- 
land. The  German  Government  believes  that  it  acts 
in  just  self-defense  when  it  seeks  to  protect  the  lives 
of  its  soldiers  by  destroying  ammunition  destined  for 
the  enemy  with  the  means  of  war  at  its  command. 


U    AMEEICA'S  CASE  AGAINST  GERMANY 

The  English  steamship  company  must  have  been 
aware  of  the  dangers  to  which  passengers  on  board 
the  Lusitania  were  exposed  under  the  circumstances. 
In  taking  them  on  board  in  spite  of  this  the  com- 
pany quite  deliberately  tried  to  use  the  lives  of  Amer- 
ican citizens  as  protection  for  the  ammunition  car- 
ried, and  violated  the  clear  provisions  of  American 
laws  which  expressly  prohibit,  and  provide  punish- 
ment for,  the  carrying  of  passengers  on  ships  which 
have  explosives  on  board.  The  company  thereby 
wantonly  caused  the  death  of  so  many  passengers. 
According  to  the  express  report  of  the  submarine 
commander  concerned,  which  is  further  confirmed  by 
all  other  reports,  there  can  be  no  doubt  that  the  rapid 
sinking  of  the  Lusitania  was  primarily  due  to  the 
explosion  of  the  cargo  of  ammunition  caused  by  the 
torpedo.  Otherwise,  in  all  human  probability,  the 
passengers  of  the  Lusitania  would  have  been  saved. '  * 

A  final  statement  of  the  German  position  was 
reserved  until  a  reply  could  be  received  from 
the  United  States  after  it  had  made  an  exami- 
nation of  these  facts. ^ 

*The  astounding  statement  is  made  that  Germany  had  fur- 
nished "ample  evidence  of  its  good  will  by  its  willingness  to 
consider"  the  proposals  of  the  United  States  to  Great  Britain 
and  Germany  for  mutual  concessions  to  secure  an  international 
modus  Vivendi,  but  that  'Hhe  realization  of  these  proposals 
failed,  as  is  known,  on  account  of  their  rejection  by  the  Gov- 
ernment of  Great  Britain."     A  similar  illusion  seems  to  have 


THE  "LUSITANIA"— OTHER  OUTRAGES      75 

This,  of  course,  did  not  so  mucli  as  attempt 
to  traverse  the  American  contention  that  the 
sinking  of  the  Lusitania  was  an  illegal,  wanton 
act  and  it  ignored  the  main  points  of  the  Ameri- 
can note :  that  submarines  could  be  used  against 
commerce  only  in  violation  of  international 
law  and  the  dictates  of  humanity,  and  that 
reparation  should  be  made  and  promises  given 
for  the  future.  Germany  treated  the  two  cases 
of  the  Gulflight  and  Cushing  more  at  length  in 
a  separate  communication,  dated  June  1st. 
The  attack  by  the  submarine  on  the  former 
was  ^'an  unfortunate  accident,'^  due  to  mis- 
taken identity,  and  full  recompense  would  be 
furnished  for  damage  done  American  citizens. 
As  for  the  Cushing,  this  case  had  not  yet  been 
fully  investigated  but  the  attack  was  not 
**  aimed  at  any  American  ship.'^ 

The  reply  of  the  American  Government  made 
on  June  9th  noted  with  satisfaction  ^'the  full 
recognition  by  the  Imperial  German  Govern- 

possessed  Ambassador  Bernstorff.  In  a  memorandum  which  he 
presented  on  the  question  of  armed  merchantmen  (March  8, 
1916),  he  said:  ''Germany,  on  March  1,  1915,  declared  her 
willingness  to  comply  with  the  proposal  of  the  American  Gov- 
ernment.'^ But,  as  the  reader  of  the  original  note  can  easily 
discover,  Germany  did  nothing  of  the  sort.    (See  above,  p.  33ff.) 


7G    AMERICA'S  CASE  AGAINST  GERMANY 

ment,  in  discussing  the  cases  of  the  Cusliing 
and  the  Gulflight,  of  the  principle  of  the  free- 
dom of  all  parts  of  the  open  sea  to  neutral 
ships  and  the  frank  willingness  of  the  Imperial 
German  Government  to  acknowledge  and  meet 
its  liability  where  the  fact  of  attack  upon  neu- 
tral ships  ^  which  have  not  been  guilty  of  any 
hostile  act^  by  German  aircraft  or  vessels  of 
war  is  satisfactorily  established.''  Informa- 
tion regarding  the  Gushing  was  promised  in 
due  course  and  then  the  note  proceeded  to  dis- 
cuss the  real  issue  and  show  the  inadequacy 
and  evasion  of  the  German  reply: 

'^With  regard  to  the  sinking  of  the  steamer  Falaba, 
by  which  an  American  citizen  lost  his  life,  the  Gov- 
ernment of  the  United  States  is  surprised  to  find  the 
Imperial  German  Government  contending  that  an  ef- 
fort on  the  part  of  a  merchantman  to  escape  capture 
and  secure  assistance  alters  the  obligation  of  the  offi- 
cers seeking  to  make  the  capture  in  respect  of  the 
safety  of  the  lives  of  those  on  board  the  merchant- 
man, although  the  vessel  had  ceased  her  attempt  to 
escape  when  torpedoed.  These  are  not  new  circum- 
stances. They  have  been  in  the  minds  of  statesmen 
and  of  international  jurists  throughout  the  develop- 
ment of  naval  warfare,  and  the  Government  of  the 


THE  "LUSITANIA"— OTHER  OUTRAGES      77 

United  States  does  not  understand  that  they  have 
ever  been  held  to  alter  the  principles  of  humanity 
upon  which  it  has  insisted.  Nothing  but  actual  forc- 
ible resistance  or  continued  efforts  to  escape  by  flight 
when  ordered  to  stop  for  the  purpose  of  visit  on  the 
part  of  the  merchantman  has  ever  been  held  to  for- 
feit the  lives  of  her  passengers  or  crew.  The  Govern- 
ment of  the  United  States,  however,  does  not  under- 
stand that  the  Imperial  German  Government  is  seek- 
ing in  this  case  to  relieve  itself  of  liability,  but  only 
intends  to  set  forth  the  circumstances  which  led 
the  commander  of  the  submarine  to  allow  himself  to 
be  hurried  into  the  course  which  he  took.'' 

In  the  case  of  the  Lusitania,  it  was  the  duty 
of  the  United  States,  as  in  every  clearance  of  a 
merchant  vessel  from  American  ports,  to  see 
that  there  was  no  armament  for  offensive  pur- 
poses, that  she  was  not  serving  as  a  transport, 
that  her  cargo  was  not  illegal  under  American 
statutes,  and  that  she  was  not  in  fact  a  British 
auxiliary  vessel.  This  duty  was  carried  out, 
and  the  United  States  could  say  that  the  Im- 
perial German  Government  had  been  misin- 
formed. The  contention  regarding  the  carriage 
of  contraband  and  its  explosion  was  irrelevant 


78    AMEEICA'S  CASE  AGAINST  GERMANY 

in    considering    the    legality    of    the    German 
methods  for 

' '  The  sinking  of  passenger  ships  involves  principles 
of  humanity  which  throw  into  the  background  any 
special  circumstances  of  detail  that  may  be  thought 
to  affect  the  cases,  principles  which  lift  it,  as  the 
Imperial  German  Government  will  no  doubt  be  quick 
to  recognize  and  acknowledge,  out  of  the  class  of 
ordinary  subjects  of  diplomatic  discussion  or  of  in- 
ternational controversy.  Whatever  be  the  other  facts 
regarding  the  Lusitania,  the  principal  fact  is  that 
a  great  steamer,  primarily  and  chiefly  a  conveyance 
for  passengers,  and  carrying  more  than  a  thousand 
souls  who  had  no  part  or  lot  in  the  conduct  of  the 
war,  was  torpedoed  and  sunk  without  so  mucli  as  a 
challenge  or  a  warning,  and  that  men,  women,  and 
children  were  sent  to  their  death  in  circumstances 
unparalleled  in  modern  warfare.  The  fact  that  more 
than  100  American  citizens  were  among  those  who 
perished  made  it  the  duty  of  the  Government  of  the 
United  States  to  speak  of  these  things  and,  once  more 
with  solemn  emphasis,  to  call  the  attention  of  the 
Imperial  German  Government  to  the  grave  responsi- 
bility which  the  Government  of  the  United  States 
conceives  that  it  has  incurred  in  this  tragic  occur- 
rence, and  to  the  indisputable  principle  upon  which 
that  responsibility  rests.  The  Government  of  the 
United    States   is   contending   for   something   much 


THE  "LUSITANIA"— OTHER  OUTRAGES      79 

greater  than  mere  rights  of  property  or  privileges 
of  commerce.  It  is  contending  for  nothing  less  high 
and  sacred  than  the  rights  of  humanity,  which  every 
Government  honors  itself  in  respecting  and  which  no 
Government  is  justified  in  resigning  on  behalf  of  those 
under  its  care  and  authority.  Only  her  actual  re- 
sistance to  capture  or  refusal  to  stop  when  ordered 
to  do  so  for  the  purpose  of  visit  could  have  afforded 
the  commander  of  the  submarine  any  justification 
for  so  much  as  putting  the  lives  of  those  on  board 
the  ship  in  jeopardy.  This  principle  the  Government 
of  the  United  States  understands  the  explicit  instruc- 
tions issued  on  August  3,  1914,  by  the  Imperial  Ger- 
man Admiralty  to  its  commanders  at  sea  to  have 
recognized  and  embodied,  as  do  the  naval  codes  of 
all  other  nations,  and  upon  it  every  traveler  and  sea- 
man had  a  right  to  depend.  It  is  upon  this  principle 
of  humanity  as  well  as  upon  the  law  founded  upon 
this  principle  that  the  United  States  must  stand." 

This  measured  indictment  of  the  German 
policy  of  frightfulness  seems  to  protest  against 
all  submarine  warfare,  even  where  American 
citizens  are  not  actually  affected,  and  while 
there  is  no  recurrence  to  the  contention  of  the 
first  Lusitania  note,  that  the  submarine  should 
not  be  used  against  commerce  at  all,  there  is 
no  intimation  that  this  contention  has  been  de- 


80    AMERICA'S  CASE  AGAINST  GERMANY 

parted  from.  The  note  goes  on  to  acknowledge 
the  expression  of  willingness  on  the  part  of 
Germany  to  reach  an  agreement  with  Great 
Britain,  but  meanwhile  ''confidently  looks  to 
see  the  justice  and  humanity  of  the  Govern- 
ment of  Germany  vindicated  in  all  cases  where 
Americans  have  been  wronged  or  their  rights 
as  neutrals  invaded/'  and  ''very  earnestly  and 
very  solemnly  renews  the  representations"  of 
its  first  note  which  had  not  been  answered. 

"The  Government  of  the  United  States,"  it  was 
said  in  conclusion,  *' cannot  admit  that  the  proclama- 
tion of  a  war  zone  from  which  neutral  ships  have 
been  warned  to  keep  away  may  be  made  to  operate 
as  in  any  degree  an  abbreviation  of  the  rights  either 
of  American  shipmasters  or  of  American  citizens 
bound  on  lawful  errands  as  passengers  on  merchant 
ships  of  belHgerent  nationality.  It  does  not  under- 
stand the  Imperial  German  Government  to  question 
those  rights.  It  understands  it,  also,  to  accept  as 
established  beyond  question  the  principle  that  the 
lives  of  noncombatants  can  not  lawfully  or  rightfully 
be  put  in  jeopardy  by  the  capture  or  destruction  of 
an  unresisting  merchantman,  and  to  recognize  the 
obligation  to  take  sufficient  precaution  to  ascertain 
whether  a  suspected  merchantman  is  in  fact  of  bel- 
ligerent nationality  or  is  in  fact  carrying  contraband 


THE  "LUSITANIA"— OTHER  OUTRAGES      81 

of  war  under  a  neutral  flag.  The  Government  of  the 
United  States  therefore  deems  it  reasonable  to  ex- 
pect that  the  Imperial  German  Government  will  adopt 
the  measures  necessary  to  put  these  principles  into 
practice  in  respect  of  the  safeguarding  of  American 
lives  and  American  ships,  and  asks  for  assurances 
that  this  will  be  done."^ 

The  first  half  of  the  German  reply  (July  8th) 
to  this   second  Lusitania  note,  was  taken  np 

'  The  resignation  of  the  then  Secretary  of  State,  Mr.  Bryan, 
rather  than  sign  this  note,  is  an  incident  of  personal  and 
domestic  importance  rather  than  of  international  significance. 
He  was  anxious,  it  will  be  remembered,  to  employ  the  principle 
of  investigation  embodied  in  his  thirty  peace  treaties  (although 
there  was  no  dispute  that  more  than  a  thousand  noncombatants 
were  killed),  and  meanwhile  to  prevent  Americans  from  travel- 
ing on  belligerent  ships  or  on  American  ships  carrying  contra- 
band. In  the  third  place  he  wanted  our  case  against  Great 
Britain  pushed  much  more  strongly.  He  explained  his  signing 
of  the  first  note,  which  is  a  much  more  vigorous  communication, 
on  the  ground  that  it  presented  the  plaintiff's  case;  when  this 
was  not  accepted,  he  desired  to  recede  gracefully. 

There  are  probably  many  phases  of  this  whole  incident  that 
have  not  been  made  public.  After  Mr.  Bryan  resigned,  the  note 
was  softened  (the  change  has  not  been  published)  but  in  his 
judgment  it  was  not  sufScient.  During  the  campaign  of  1916 
there  was  some  talk  of  a  mysterious  postscript  to  conciliate 
Germany  that  was  deleted  just  before  transmission.  Also,  a  full 
explanation  has  never  been  given  of  Mr.  Bryan 's  interview  with 
the  Austro-Hungarian  Ambassador  who  was  told  that  the  first 
Lusitania  note  was  for  ' '  home  consumption. ' '  But  with  the  ex- 
ception of  the  possible  effects  of  this  interview,  the  incident 
is  of  only  domestic  interest. 


82    AMERICA'S  CASE  AGAINST  GERMANY 

with  a  protest  against  British  trade  restraints 
and  the  refusal  to  ratify  the  Declaration  of 
London.  There  was  a  hint  of  justification  on 
the  basis  of  Realpolitik  when  the  reply  said: 
^'It  is  the  sacred  duty  of  the  Imperial  Govern- 
ment to  do  all  within  its  power  to  protect  and 
to  save  the  lives  of  German  subjects.  If  the 
Imperial  Government  were  derelict  in  these, 
its  duties,  it  would  be  guilty  before  God  and 
history  of  the  violation  of  those  principles  of 
highest  humanity  which  are  the  foundation  of 
every  national  existence.'' 

In  the  case  of  the  Lusitania,  there  was  the 
same  evasion  of  the  issue  that  had  character- 
ized the  previous  statements.  Its  destruction 
was  declared  to  show  ^'with  horrible  clearness 
to  what  jeopardizing  of  human  lives  the  man- 
ner of  conducting  the  war  employed  by  our 
adversaries  leads.''  If  the  commander  of  the 
submarine  which  destroyed  the  Lusitania  had 
given  the  crew  and  passengers  time  to  leave  the 
ship  before  torpedoing  it,  this  would  have 
meant  the  destruction  of  his  own  vessel.  Fur- 
thermore, it  was  to  be  anticipated  that  such  a 
ship  would  remain  above  water  for  a  sufficient 


THE  "LUSITANIA"— OTHER  OUTRAGES      83 

time  to  allow  an  escape  to  be  made,  and  the 
explosive  character  of  the  cargo  was  respon- 
sible for  the  failure  of  this  expectation.  Again, 
it  was  ^^  pointed  out  that  if  the  Lusitania  had 
been  spared  thousands  of  cases  of  ammunition 
would  have  been  sent  to  Germany's  enemies, 
and  thereby  thousands  of  German  mothers  and 
children  robbed  of  their  supporters,''  the  argu- 
ment, here,  apparently  being  that  American  and 
English  mothers  and  children  could  be  mur- 
dered on  the  supposition  that  the  vessel  con- 
tained war  material. 

Promises  were  made,  however,  that  Ameri- 
can shipping  would  be  respected,  and  the  sug- 
gestion was  offered  that  the  vessels  be  marked 
so  as  to  be  easily  recognizable.  It  was  ^^con- 
fidently" hoped  ^Hhat  the  American  Govern- 
ment will  assume  the  guarantee  that  these  ves- 
sels have  no  contraband  on  board,"  and  the 
details  of  their  unhampered  passage  would 
have  to  be  agreed  upon  by  both  belligerents. 
Perhaps  it  would  be  possible  for  a  reasonable 
number  of  neutral  steamers  to  be  put  under 
the  American  flag  and  thus  '  ^  adequate  facilities 
for  travel  across  the  Atlantic  Ocean  can  be 


84    AMERICA'S  CASE  AGAINST  GERMANY 

afforded  American  citizens.  There  would  there- 
fore appear  to  be  no  compelling  necessity  for 
American  citizens  to  travel  to  Europe  in  time 
of  war  on  ships  carrying  an  enemy  flag.  In 
particular,  the  Imperial  Government  is  unable 
to  admit  that  American  citizens  can  protect  an 
enemy  ship  through  the  mere  fact  of  their  pres- 
ence on  board.''  * 

*  The  note  said  that  if  it  should  not  be  possible  to  acquire 
neutral  steamers,  "the  Imperial  Government  is  prepared  to  in- 
terpose no  objections  to  the  placing  under  the  American  flag  by 
the  American  Government  of  four  enemy  passenger  steamers 
for  the  passenger  trafl&c  between  America  and  England.  The 
assurances  of  'free  and  safe'  passage  for  American  passen- 
ger steamers  would  then  be  extended  to  apply  under  the  identi- 
cal pre-conditions  to  these  formerly  hostile  passenger  ships.  .  .  . 

"Germany  merely  followed  England's  example  when  it  de- 
clared part  of  the  high  seas  an  area  of  war.  Consequently  ac- 
cidents suffered  by  neutrals  on  enemy  ships  in  this  area  of  war 
can  not  well  be  judged  differently  from  accidents  to  which 
neutrals  are  at  all  times  exposed  at  the  seat  of  war  on  land, 
when  they  betake  themselves  into  dangerous  localities  in  spite 
of  previous  warning. ' ' 

Perhaps  the  German  Foreign  Office  believed  that  sucli  com- 
munications would  serve  to  palliate  the  American  people;  but 
certainly  Ambassador  Bernstorff  was  under  no  such  delusion. 
The  first  note  was  published  in  the  papers  on  May  31st 
and  there  was  an  outburst  of  criticism.  Count  Bernstorff 
asked  for  and  secured  an  interview  with  the  President  and  ob- 
tained permission  to  send  to  Germany  a  member  of  the  Embassy 
staff  who  traveled  under  a  safe  conduct  arranged  for  by  the 
State  Department  (June  3rd).  There  was  much  difficulty,  the 
Ambassador  said,  in  communicating  by  cable;  but  it  would  not 


THE  "LUSITANIA"— OTHER  OUTRAGES       85 

As  was  the  case  with  the  first  German  reply 
on  the  Lusitania  tragedy,  this  note  was  fol- 
lowed by  an  unexpected  communication  de- 
signed to  conciliate  American  opinion  and  per- 
suade the  country  that  the  submarine  campaign 
would  be  directed  only  against  enemy  merchant 
vessels  and  that  there  was  some  fairness  in  the 
contention  that  Americans  should  not  be  used 
to  protect  such  vessels,  particularly  if  they 
carried  contraband  of  war.  Submarine  activi- 
ties had  apparently  continued  with  but  slight, 
if  any  restraint,  for  on  May  25th,  the  American 
steamer  Nebrashan,  bound  for  Delaware  Break- 
water was  torpedoed  45  miles  off  the  south 
coast  of  Ireland.  The  crew  at  once  took  to  the 
boats,  but  the  vessel  had  been  struck  forward 
and  did  not  sink,  so  the  crew  was  able  to  take 
her  back  to  Liverpool.  No  submarine  was  seen, 
but  the  circumstances  of  the  explosion,  and 
fragments  of  metal  found  in  the  hull  of  the 
Nehraskan  indicated  that  the  vessel  had  not 
struck  a  mine. 

seem  that  the  Embassy's  representative  (Dr.  Anton  Meyer- 
Gerhard)  contributed  much  towards  making  the  note  of  July 
8th  more  satisfactory. 


86    AMEEICA'S  CASE  AGAINST  GERMANY 

On  July  12tli  Ambassador  Gerard  sent  to 
the  State  Department  Germany's  admission 
that  the  Nehrashan  had  been  attacked  by  a  sub- 
marine. No  formal  protest  had  been  made,  but 
when  ^'the  German  Government  received  from 
newspaper  reports  the  intelligence''  of  the  in- 
cident, it  ^^  started  a  thorough  investigation 
without  delay."  Germany  asserted  that  the 
vessel  had  no  markings,  that  the  submarine 
commander  was  therefore  justified  in  assum- 
ing that  it  was  an  English  steamer,  but  that 
when,  sometime  after  the  torpedo  was  fired, 
the  Nehrashan  hoisted  the  American  flag,  fur- 
ther attack  was  refrained  from. 

"It  results  from  this,  without  a  doubt,  that  attack 
on  the  steamer  Nehraskan  was  not  meant  for  the 
American  flag;  nor  is  it  traceable  to  any  fault  on 
the  part  of  the  commander  of  the  German  subma- 
rine, but  is  to  be  considered  an  unfortunate  accident. 
The  German  Government  expresses  its  regret  at  the 
occurrence  to  the  Government  of  the  United  States 
of  America  and  declares  its  readiness  to  make  com- 
pensation for  the  damage  thereby  sustained  by  Amer- 
ican citizens. 

''As  in  the  case  of  the  steamer  Gulflight,  the  Ger- 
man Government  begs  to  suggest  that  the  American 


THE  "LUSITANIA"— OTHER  OUTRAGES      87 

Government  submit  to  it  a  detailed  statement  of  such 
damage  or,  if  doubt  might  arise  as  to  certain  points, 
to  designate  an  expert  to  fix  the  amount  of  compen- 
sation, acting  in  conjunction  with  a  German  expert." 

But,  other  cases  occurred  during  the  ex- 
changes over  the  Lusitania  which  were  so  fla- 
grant that  it  was  but  scant  comfort  to  know 
that  Germany  was  willing  to  make  reparation 
for  the  Gulfliglit  and  the  Nehrashan.  Ameri- 
can interests  were  directly  affected  when  the 
British  steamer  Armenian  was  torpedoed  off 
the  Cornwall  coast  on  June  28th,  several  Amer- 
icans employed  to  care  for  the  horses  and 
mules  of  the  vessel's  cargo  being  killed.  In 
this  particular  instance,  however,  the  United 
States  could  not  regard  the  sinking  as  an  ^^un- 
friendly act,"  because  the  Armenian  attempted 
to  escape,  and  a  chase  of  an  hour  ensued  with 
the  submarine  shelling  the  vessel.  The  cap- 
tain then  surrendered,  and  after  he  and  the 
crew  had  left  the  ship,  it  was  torpedoed,  the 
only  exceptional  feature  on  account  of  the  na- 
ture of  the  submarine  being  that  the  crew  had 
but  the  ^^poor  security"  of  the  open  sea  and 
were  not  taken  on  board  of  the  capturing  ves- 


88    AMERICA'S  CASE  AGAIXST  GERMANY 

sel.  Likewise,  the  Britisli  merchantman  Anglo- 
Californian,  on  July  2nd,  tried  to  escape  from 
a  submarine,  the  captain  and  several  members 
of  the  crew  being  killed  by  shells,  but  wireless 
calls  for  help  brought  British  destroyers  to  the 
scene  and  the  submarine  was  forced  to  sub- 
merge. Again,  three  Americans  were  saved  by 
the  American  bark  Normandy  when  the  Rus- 
sian steamer  Leo  was  sunk  with  no  opportunity 
for  saving  lives. ^ 

On  July  9th,  a  repetition,  although  on  a 
smaller  scale,  of  the  Lusitania  outrage,  was 
narrowly  missed.  The  British  steamship  Or- 
duna,  bound  west  from  Liverpool,  with  twenty- 
one  American  passengers  on  board  was  at- 
tacked by  a  submarine.  A  torpedo  cleared  the 
stern  by  a  margin  of  only  ten  feet  and  six  shells 
were  fired,  but  the  Orduna  was  able  to  escape.^ 

"  The  charge  was  made  that  the  submarine  compelled  the 
Normandy  to  act  as  a  shield  while  the  approach  of  the  Leo  was 
awaited.     Associated  Press  Dispatch,  dated  July  13,  1915. 

'  The  German  explanation  made  on  September  9th  and  trans- 
mitted by  Mr.  Gerard  on  the  11th,  said  that  the  Orduna  had  no 
markings  but  that  the  first  attack  on  her  "  by  a  torpedo  was  not 
in  accordance  with  the  existing  instructions,  which  provide  that 
large  passenger  steamers  are  only  to  be  torpedoed  after  previous 
warning  and  after  the  rescuing  of  passengers  and  crew.  The 
failure  to  observe  the  instructions  was  based  on  an  error,  which 


THE  "LUSITANIA"— OTHEE  OUTEAGES      89 

On  July  25th,  the  American  ship  Leelanaw  was 
sunk  while  flying  the  American  flag,  with  no 
loss  of  life.  Ample  time  was  given  the  crew 
to  leave  the  vessel  and  the  submarine  towed 
the  life-boats  for  some  distance/ 

A  few  days  before  the  news  of  this  last  inci- 
dent came,  Secretary  of  State  Lansing  sent 
his  last  formal  communication  on  the  Lusitania 
(July  21st).  He  called  the  German  reply 
^'very  unsatisfactory"  for  instead  of  meeting 
the  real  differences  it  proposed  arrangements 
which  would  set  aside  the  principles   of  law 

is  at  any  rate  comprehensible,  and  the  repetition  of  which  ap- 
pears to  be  out  of  the  question,  in  view  of  the  more  explicit 
instructions  issued  in  the  meantime.  Moreover,  the  commanders  of 
the  submarines  have  been  reminded  that  it  is  their  duty  to  exer- 
cise greater  care  and  to  observe  carefully  the  orders  issued." 

''  On  October  16th,  the  German  Foreign  Office  declared  that  the 
commander  had  acted  in  accordance  with  the  principles  of  in- 
ternational law  and  that  he  was  justified  in  sinking  the  vessel 
since  more  than  one  half  of  the  cargo  was  absolute  contraband 
(flax).  The  commander  was  unable  to  take  the  steamer  into  a 
port  without  impairing  the  success  of  his  operations  and  was 
justified  in  destroying  the  vessel  under  the  Declaration  of 
London.  However,  in  this  case,  as  in  that  of  the  William  P. 
Frye,  the  Treaty  of  1799  was  applicable,  and  the  Prize  Court 
would  determine  the  amounts  due  the  American  owners.  The 
reply  of  the  United  States  (November  30th)  insisted,  as  it  had 
in  the  Frye  case,  that  the  amount  of  the  indemnity  be  deter- 
mined by  diplomatic  negotiation. 


90    AMEEICA'S  CASE  AGAIXST  GERMANY 

and  humanity  for  which  the  Government  of 
the  United  States  was  contending.  The  Gov- 
ernment of  the  United  States  noted  with  satis- 
faction, however, 

**that  the  Imperial  German  Government  recognizes 
without  reservation  the  vahdity  of  the  principles  in- 
sisted on  in  the  several  communications  which  this 
Government  has  addressed  to  the  Imperial  German 
Government  with  regard  to  its  announcement  of  a 
war  zone  and  the  use  of  submarines  against  mer- 
chantmen on  the  high  seas — the  principle  that  the 
high  seas  are  free,  that  the  character  and  cargo  of  a 
merchantman  must  first  be  ascertained  before  she 
can  lawfully  be  seized  or  destroyed,  and  that  the  lives 
of  noncombatants  may  in  no  case  be  put  in  jeopardy 
unless  the  vessel  resists  or  seeks  to  escape  after  being 
summoned  to  submit  to  examination ;  for  a  belligerent 
act  of  retaliation  is  per  se  an  act  beyond  the  law, 
and  the  defense  of  an  act  as  retaliatory  is  an  admis- 
sion that  it  is  illegal." 

This  definitely  narrowed  the  controversy  until 
the  German  case  was  made  to  rest  merely  on 
the  ground  that  the  submarine  blockade  was 
justified  as  retaliatory  for  England's  exten- 
sions of  international  law,  and  to  such  an  argu- 
ment the  United  States  interposed  a  denial 
which,   as   will  be   seen  later,   was   generally 


THE  "LUSITANIA"— OTHER  OUTEAGES      91 

sound,  if  too  broad,  although  this  is  not  to  say 
that  the  German  contention  should  be  accepted, 
even  in  part.  ^ 

^  Anticipatory  of  a  more  detailed  consideration  later,  it  may 
be  pointed  out  here,  that  the  British  Ambassador  in  a  note  of 
March  1,  1915,  frankly  justified  England's  more  stringent 
measures  as  retaliatory  for  Germany's  violations  of  interna- 
tional law;  but  it  was  promised  that  they  would  be  enforced 
"without  risk  to  neutral  ships  or  to  neutral  or  noncombatant 
life  and  in  strict  observance  of  the  dictates  of  humanity." 
With  regard  to  the  German  methods,  there  were  the  following 
pertinent  remarks: 

"The  sinking  of  prizes  is  in  itself  a  questionable  act,  to  be 
resorted  to  only  in  extraordinary  circumstances  and  after  pro- 
vision has  been  made  for  the  safety  of  all  the  crew  or  passengers 
(if  there  are  passengers  on  board).  The  responsibility  for  dis- 
criminating between  neutral  and  enemy  vessels,  and  between 
neutral  and  enemy  cargo,  obviously  rests  with  the  attacking  ship, 
whose  duty  it  is  to  verify  the  status  and  character  of  the  vessel 
and  cargo,  and  to  preserve  all  papers  before  sinking  or  ever 
capturing  it.  So  also  is  the  humane  duty  of  providing  for  the 
safety  of  the  crews  of  merchant  vessels,  whether  neutral  or 
enemy,  an  obligation  upon  every  belligerent.  It  is  upon  this 
basis  that  all  previous  discussions  of  the  law  for  regulating 
warfare  at  sea  have  proceeded. 

' '  A  German  submarine,  however,  fulfills  none  of  these  obliga- 
tions. She  enjoys  no  local  command  of  the  waters  in  which  she 
operates.  She  does  not  take  her  captures  within  the  jurisdiction 
of  a  prize  court.  She  carries  no  prize  crew  which  she  can  put 
on  board  a  prize.  She  uses  no  effective  means  of  discriminating 
between  a  neutral  and  an  enemy  vessel.  She  does  not  receive  on 
board  for  safety  the  crew  and  passengers  of  the  vessel  she  sinks. 
Her  methods  of  warfare  are  therefore  entirely  outside  the  scope 
of  any  of  the  international  instruments  regulating  operations 
against  commerce  in  time  of  war.  The  German  declaration 
substitutes  indiscriminate  destruction  for  regulated  capture. ' ' 


92    AMEKICA'S  CASE  AGAINST  GEEMANY 

^^The  Government  of  the  United  States  is, 
however/'  the  note  said,  ''keenly  disappointed 
to  find  that  the  Imperial  German  Government 
regards  itself  as  in  large  degree  exempt  from 
the  obligation  to  observe  these  principles,  even 
where  neutral  vessels  are  concerned,  by  what 
it  believes  the  policy  and  practice  of  the  Gov- 
ernment of  Great  Britain  to  be  in  the  present 
war  with  regard  to  neutral  commerce. ''  Ger- 
many was  told  here,  just  as  she  was  to  be  told 
more  forcibly  in  connection  with  her  qualified 
pledge  after  the  sinking  of  the  Sussex,^  that 
the  conduct  of  other  belligerents  was  irrelevant 
to  a  discussion  of  ''grave  and  unjustifiable  vio- 
lations of  the  rights  of  American  citizens  by 
German  naval  commanders '^ ;  these  "illegal 
and  inhuman  acts,  however  justifiable  they  may 
be  thought  to  be  against  an  enemy  who  is  be- 
lieved to  have  acted  in  contravention  of  law 
and  humanity,  are  manifestly  indefensible 
when  they  deprive  neutrals  of  their  acknowl- 
edged rights,  particularly  when  they  violate  the 
right  to  life  itself. 

"  If  a  belligerent  can  not  retaliate  against  an 

»See  below,  p.  173ff. 


"    THE  "LUSITANIA"— OTHER  OUTRAGES      93 

enemy  without  injuring  the  lives  of  neutrals,  as 
well  as  their  property,  humanity,  as  well  as 
justice  and  a  due  regard  for  the  dignity  of 
neutral  powers,  should  dictate  that  the  practice 
be  discontinued." 

The  Government  of  the  United  States  pro- 
fessed itself  not  unmindful  of  the  fact  that 
when  the  existing  international  rules  were  for- 
mulated, the  nations  did  not  have  in  view  the 
use  of  submarines,  and  announced  that  it  was 
**  ready  to  make  reasonable  allowances  for  these 
novel  and  unexpected  aspects  of  war  at  sea ;  but 
it  can  not  consent  to  abate  any  essential  or  fun- 
damental right  of  its  people  because  of  a  mere 
alteration  of  circumstances.  The  rights  of  neu- 
trals in  time  of  war  are  based  upon  principle, 
not  upon  expediency,  and  the  principles  are 
immutable.  It  is  the  duty  and  obligation  of 
belligerents  to  find  a  way  to  adapt  the  new  cir- 
cumstances to  them.'' 

Secretary  of  State  Lansing  then  apparently 
took  the  position  that  submarines  could  be  used 
against  commerce  with  a  regard  for  the  prin- 
ciples of  international  law  and  humanity  and 
thus  abandoned  the  belief,  expressed  in  the  first 


94    AMERICANS  CASE  AGAINST  GERMANY 

Lusitania  note  that  no  submarine  activities 
against  commerce  should  be  resorted  to.  In  a 
paragraph  of  doubtful  accuracy  he  said: 

*'The  events  of  the  past  two  months  have  clearly 
indicated  that  it  is  possible  and  practicable  to  con- 
duct such  submarine  operations  as  have  characterized 
the  activity  of  the  Imperial  German  Navy  within  the 
so-called  war  zone  in  substantial  accord  with  the  ac- 
cepted practices  of  regulated  warfare.  The  whole 
world  has  looked  with  interest  and  increasing  satis- 
faction at  the  demonstration  of  that  possibility  by 
German  naval  commanders.  It  is  manifestly  pos- 
sible, therefore,  to  lift  the  whole  practice  of  subma- 
rine attack  above  the  criticism  which  it  has  aroused 
and  remove  the  chief  causes  of  offense. ' '  ^^ 

"  Here  he  probably  had  reference  to  the  attacks  on  the 
Armenian  and  Anglo-Calif ornian  both  of  which  attempted  to 
escape.  But  it  would  seem  that  the  inapplicability  of  the  sub- 
marine to  warfare  on  commerce  had  been  demonstrated  by  the 
*' unfortunate  accidents"  of  the  Gulflight  and  Nebrasl-an,  ad- 
mitted by  Germany,  "accidents"  which  could  not  have  hap- 
pened in  cruiser  warfare  according  to  the  recognized  principles 
of  international  law.  The  facts  of  the  Orduna  incident  which 
appear  to  negative  Secretary  Lansing's  position  even  more 
definitely  did  not  become  known  until  after  the  despatch  of  his 
note.  In  the  second  American  Lusitania  note,  a  paragraph  with 
reference  to  the  Falaba  correctly  said  that  an  effort  to  escape 
did  not  alter  the  obligation  to  safeguard  the  lives  of  those  on 
board  the  merchantman.  The  force  used  could  only  be  suflS.- 
cient  to  check  the  flight  or  overcome  the  resistance.  See  above, 
p.  51  and  below,  p.  159. 


THE  "LUSITANIA"— OTHER  OUTRAGES      95 

Finally,  the  German  Government  was  again 
called  upon  to  disavow  'Hhe  wanton  act  of  its 
naval  commander  in  sinking  the  Lusitania,^^ 
and  to  offer  ' '  reparation  for  the  American  lives 
lost  so  far  as  reparation  can  be  made  for  a 
needless  destruction  of  human  life  by  an  illegal 
act.''  The  suggestion  regarding  vessels  under 
the  American  flag  which  would  have  free 
passage  in  the  war  zones  was  rejected  since 
^'ihe  very  agreement  would,  by  implication, 
subject  other  vessels  to  illegal  attack  and  would 
be  a  curtailment  and  therefore  an  abandonment 
of  the  principles  for  which  this  Government 
contends  and  which  in  times  of  calmer  coun- 
sels every  nation  would  concede  as  of  course.'' 
And  this  solemn  warning  was  conveyed: 

''The  very  value  which  this  Government  sets  upon 
the  long  and  unbroken  friendship  between  the  people 
and  Government  of  the  United  States  and  the  people 
and  Government  of  the  German  nation  impels  it 
to  press  very  solemnly  upon  the  Imperial  German 
Government  the  necessity  for  a  scrupulous  observ- 
ance of  neutral  rights  in  this  critical  matter.  Friend- 
ship itself  prompts  it  to  say  to  the  Imperial  Govern- 
ment that  repetition  by  the  commanders  of  German 
naval  vessels  of  acts  in  contravention  of  those  rights 


96    AMERICA'S  CASE  AGAINST  GERMANY 

must  be  regarded  by  the  Government  of  the  United 
States,  when  they  affect  American  citizens,  as  delib- 
erately unfriendly." 

This,  as  I  have  said,  was  the  final  formal 
word  of  the  United  States  on  the  Lusitania; 
further  negotiations,  to  be  referred  to  later, 
were  conducted  by  means  of  ^' conversations^^ 
between  the  German  Ambassador  and  the  Sec- 
retary of  State.  But  in  the  meantime  a  repe- 
tition, on  a  smaller  scale,  of  the  Lusitania  trag- 
edy brought  the  crisis  to  a  head  and  wrung 
concessions  and  pledges,  although  limited,  from 
the  Imperial  German  Government.^  ^ 

"  The  British  Admiralty  announced  on  May  18th  that  the 
submarine  campaign  had  sunk  460,628  tons  of  British  merchant 
and  fishing  vessels.  This  had  caused  the  death  of  about  1556 
persons.  "On  the  other  hand,  no  enemy  or  neutral  subject  had 
lost  his  life  in  consequence  of  the  destruction  by  the  English 
of  enemy  merchant  vessels.  Moreover,  British  warships  had 
saved  from  drowning  more  than  1200  members  of  the  crews  of 
German  warships  destroyed,  whereas  no  members  of  British 
crews  had  been  saved  by  the  Germans. ' '  Quoted  by  Garner, 
' '  International  Law  in  the  European  War, ' '  American  Journal 
of  International  Law,  Vol.  IX,  p.  607. 


CHAPTER   V 


THE    GERMAN    PLEDGES 


In  defense  of  her  action  in  sinking  the  Lusi- 
tania  Germany  had  alleged,  among  the  various 
reasons  to  which  from  time  to  time  she  re- 
sorted, that  the  vessel  was  carrying  contraband, 
and  that,  in  order  to  prevent  innocent  women 
and  children  from  being  widowed  and  orphaned, 
she  was  justified  in  taking  any  measures  to  stop 
such  a  cargo  before  it  reached  her  enemy.  The 
Arabic,  however,  permitted  no  such  '' defense,'' 
for  this  White  Star  Liner  was  bound  for  New 
York  and  hence  carrying  no  contraband,  was 
unarmed,  and  was  torpedoed  without  warning 
(August  19th),  twenty-five  of  the  crew  and  nine- 
teen passengers  being  reported  missing,  among 
them  two  Americans.  Here,  certainly,  it 
seemed,  was  the  ^'deliberately  unfriendly"  act 
referred  to  in  the  last  American  note. 

That  Germany  and  her  Ambassador  in  this 

97 


98    AMERICA'S  CASE  AGAINST  GERMANY 

country  recognized  the  seriousness  of  the  in- 
cident is  shown  by  the  instructions  which  Count 
Bernstorff  received  from  Berlin  and  which  he 
made  public  on  August  24th.  In  the  absence 
of  official  information,  the  statement  said, 

''The  German  Government  trusts  that  the  Ameri- 
can Government  will  not  take  a  definite  stand  at 
hearing  only  the  reports  of  one  side,  which,  in  the 
opinion  of  the  Imperial  Government,  cannot  corre- 
spond with  the  facts,  but  that  a  chance  will  be  given 
to  Germany  to  be  heard  equally. 

''Although  the  Imperial  Government  does  not 
doubt  the  good  faith  of  the  witnesses  whose  state- 
ments are  reported  by  the  newspapers  in  Europe,  it 
should  be  borne  in  mind  that  these  statements  are 
naturally  made  under  excitement  which  might  easily 
produce  wrong  impressions. 

' '  If  Americans  should  actually  have  lost  their  lives, 
this  would  naturally  be  contrary  to  our  intentions. 
The  German  Government  would  deeply  regret  the 
fact,  and  begs  to  tender  sincere  sympathies  to  the 
American  Government." 

And,  realizing  that  American  public  opinion 
would  tolerate  no  more  evasions,  pleas  of  ''un- 
fortunate accidents, ' '  or  further  justification  of 
the  submarine  warfare  as  a  measure  of  reprisal, 


THE  GEEMAN  PLEDGES  99 

the  Imperial  Government  authorized  Ambassa- 
dor Bernstorff  to  convey  to  the  United  States 
formal  assurances  that  the  outrages  would  be 
stopped.  This  was  done  in  the  following  note, 
addressed  to  Secretary  Lansing  and  dated  Sep- 
tember 1st: 

*^My  Dear  Mr.  Secretary: 

"With  reference  to  our  conversation  of  this  morn- 
ing I  beg  to  inform  you  that  my  instructions  ^  con- 
cerning our  answer  to  your  last  Lusitania  note  con- 
tain the  following  passage : 

"  'Liners  will  not  be  sunk  by  our  submarines  with- 
out warning  and  without  safety  of  the  lives  of  non- 
combatants,  provided  that  the  liners  do  not  try  to 
escape  or  offer  resistance.' 

*' Although  I  know  that  you  do  not  wish  to  discuss 
the  Lusitania  question  till  the  Arabic  incident  has 
been  definitely  and  satisfactorily  settled,  I  desire  to 
inform  you  of  the  above  because  this  policy  of  my 
Government  was  decided  on  before  the  Arabic  inci- 
dent occurred. 

''I  have  no  objection  to  your  making  any  use  you 
may  please  of  the  above  information. 
''I  remain,  etc., 

*'J.  Bernstorff.'' 

*  The  exchange  of  formal  notes  had  ceased  and  the  Lusitania 
case  was  being  discussed  by  the  Ambassador  and  the  State 
Department. 


100  AMERICA'S  CASE  AGAINST  GERMANY 

Commenting  on  this  letter,  Secretary  of  State 
Lansing  said: 

**In  view  of  the  clearness  of  the  foregoing  state- 
ment, it  seems  needless  to  make  any  comment  in  re- 
gard to  it,  other  than  to  say  that  it  appears  to  be  a 
recognition  of  the  fundamental  principle  for  which 
we  have  contended. '* 

But  subsequent  events  showed  that  this  com- 
ment by  Secretary  Lansing  was  too  optimistic. 
The  German  excuse  for  the  sinking  of  the 
Arabic  (made  on  September  7th)  was  that  the 
commander  thought 

''that  the  steamer  had  the  intention  of  attacking 
and  ramming  him.  In  order  to  anticipate  this  attack 
he  gave  orders  to  have  the  submarine  submerge  and 
fired  a  torpedo  at  the  steamer.  After  firing  he  con- 
vinced himself  that  the  people  on  board  were  being 
rescued  in  fifteen  boats. 

''According  to  his  instructions  the  commander  was 
not  allowed  to  attack  the  Arabic  without  warning 
and  without  saving  lives  unless  the  ship  attempted 
to  escape  or  offered  resistance.  He  was  forced  to 
conclude  from  the  attendant  circumstances  that  the 
Arabic  planned  a  violent  attack  on  the  submarine. 
This  conclusion  is  all  the  more  obvious,  as  he  had 
been  fired  upon  at  a  great  distance  in  the  Irish  Sea 


THE  GERMAN  PLEDGES  101 

on  August  14 — that  is,  a  few  days  before — by  a 
large  passenger  steamer  apparently  belonging  to  the 
British  Royal  Mail  Steam  Packet  Company,  which  he 
had  neither  attacked  nor  stopped. 

* '  The  German  Government  most  deeply  regrets  that 
lives  were  lost  through  the  action  of  the  commander. 
It  particularly  expresses  this  regret  to  the  Govern- 
ment of  the  United  States  on  account  of  the  death 
of  American  citizens." 

Germany  refused  to  acknowledge  any  obliga- 
tion to  grant  indemnity,  even  if  the  commander 
was  mistaken,  but  offered  to  submit  this  phase 
of  the  incident  to  the  Hague  Tribunal.  This 
position,  while  marking  from  the  standpoint  of 
the  United  States  a  qualified  diplomatic  vic- 
tory, was  far  from  satisfactory,  and  serious 
doubt  was  thrown  on  the  bona  fides  of  the  Ger- 
man pledges  by  the  torpedoing  of  the  Hespe- 
rian. This  liner  was  sunk  on  September  4th 
with  the  loss  of  twenty-six  lives,  and  the  inci- 
dent aided  in  impressing  on  the  United  States 
the  need  for  a  very  definite  understanding  with 
Germany.^ 

'  On  September  14th  a  semi-official  statement  of  the  German 
position  asserted  that  the  disaster  must  have  been  caused  by  a 
mine.    "According  to  a  pre-arranged  distribution,"  it  was  not 


102  AMERICA'S  CASE  AGAIINTST  CEEMAXY 

Another  month  of  negotiation  ensued,  and 
then  the  Arabic  crisis  was  apparently  settled. 
On  October  5th  the  German  Ambassador  noti- 
fied the  State  Department  that  the  instructions 
to  the  submarine  commanders  had  been  ^'made 
so  stringent  that  the  recurrence  of  incidents 
similar  to  the  Arabic  case  is  considered  out  of 
the  question. 

*^  According  to  the  report  of  Commander 
Schneider  of  the  submarine  that  sank  the 
Arabic,  and  his  affidavit  as  well  as  those  of  his 
men,  Commander  Schneider  was  convinced  that 
the  Arabic  intended  to  ram  the  submarine.  On 
the  other  hand,  the  Imperial  Government  does 
not  doubt  the  good  faith  of  the  affidavits  of  the 
British  officers  of  the  Arabic,  according  to 
which  the  Arabic  did  not  intend  to  ram  the  sub- 
marine. The  attack  of  the  submarine,  there- 
possible  for  a  German  submarine  to  be  in  that  vicinity  when  the 
Hesperian  sank;  and  the  statement  claimed,  further,  that  ''the 
explosion,  according  to  descriptions  received  from  British 
sources,  was  of  such  a  nature  as  to  indicate  from  its  effects 
that  it  was  rather  of  a  mine  than  of  a  torpedo. ' '  The  British 
Admiralty  forwarded  to  the  State  Department  fragments  of 
metal  picked  up  on  the  deck  which  American  naval  experts  de- 
clared were  parts  of  a  torpedo.  This  decision  was  announced 
by  the  State  Department  on  October  30th.  The  case  against 
Germany,  on  account  of  this  incident,  however,  was  not  pressed. 


THE  GERMAN  PLEDGES  103 

fore,  was  undertaken  against  the  instructions 
issued  to  the  commander.  The  Imperial  Gov- 
ernment regrets  and  disavows  this  act  and  has 
notified  Commander  Schneider  accordingly. 

^' Under  these  circumstances  my  Government 
is  prepared  to  pay  an  indemnity  for  American 
lives  which  to  its  deep  regret  have  been  lost 
on  the  Arabic.  I  am  authorized  to  negotiate 
with  you  about  the  amount  of  this  indemnity. ' '  ^ 

This  result  of  the  Arabic  incident  seemed  to 
indicate  that  Germany  was  alarmed  over  the 
danger  of  a  break  with  the  United  States.  ^^A 
diplomatic  victory  for  the  United  States^'  was 
the  description  given  by  Count  von  Bernstorff 
and  the  concessions  now  secured  after  the 
stringent  announcement  of  February  4th  in- 
cluded the  following,  as  set  forth  in  a  semi- 
official statement:  (1)  an  acknowledgment  of 
the  right  of  American  ships  to  sail  through  the 

'Ambassador  Bernstorff  in  a  note  to  the  State  Department 
on  September  4th  reported  the  action  of  an  English  merchant 
vessel  in  firing  on  a  submarine  without  a  challenge  of  any  kind 
and  stressed  ''the  point  that  British  merchant  vessels  which 
attack  German  submarines  of  course  expose  themselves  to  the 
danger  of  destruction;  American  citizens  who  travel  on  such 
vessels  do  so  on  their  own  responsibility  and  incur  the  greatest 
risk." 


104    AMERICA'S  CASE  AGAINST  GERMANY 

war  zone;  (2)  an  acknowledgment  of  liability 
for  American  ships  damaged  or  sunk,  even 
when  carriers  of  contraband,  this  liability  aris- 
ing, however,  under  the  Treaty  of  1799  and  not 
under  general  principles  of  international  law; 
(3)  a  promise  not  to  sink  American  ships  carry- 
ing conditional  contraband;  (4)  an  offer  to  ar- 
bitrate the  German  claim  that  American  ships 
carrying  absolute  contraband  might  be  sunk 
(the  Frye  case) ;  (5)  an  acknowledgment  of  lia- 
bility for  damages  to  American  citizens  on  mer- 
chant ships,  even  those  of  the  enemy,  when  the 
attack  was  without  warning  and  with  no  re- 
sistance or  attempt  to  escape;  (6)  a  promise 
not  to  attack  ^'liners*'  even  when  enemy  ones, 
without  allowing  time  for  the  escape  of  the  pas- 
sengers and  crew;  (7)  a  disavowal  of  the  sink- 
ing of  the  Arabic  and  an  expression  of  regret 
at  the  incident;  (8)  a  promise  that  in  the  future 
a  mistake  by  a  submarine  commander  in  think- 
ing that  he  was  to  be  attacked  would  not  be 
regarded  as  diminishing  liability  for  damages 
to  American  citizens.* 

*  On  October  30th  the  German  Foreign  Secretary  in  a  com- 
munication to  Ambassador  Gerard,  noted  "with  satisfaction 
that  a  full  understanding  has  been  reached  between  our  two 


THE  GEEMAN  PLEDGES  105 

Unquestionably  the  United  States  had  won  a 
great  diplomatic  victory.  The  war  party  in 
Germany  and  a  majority  of  the  people  seemed 
to  be  convinced  of  the  righteousness  of  the 
submarine  warfare,  and  of  the  pro-English,  un- 
reasonable character  of  the  threats  of  the 
United  States,  veiled,  to  be  sure,  but  neverthe- 
less very  real,  that  the  continuance  of  friendly 
relations  was  contingent  upon  an  abandonment 
of  such  methods.  However,  even  these  pledges 
afforded  reasons  for  doubt  about  the  future. 
While  no  official  announcement  was  made,  ap- 
parently authentic  reports  were  to  the  effect 
that  the  British  had  been  very  successful  in 
destroying  German  submarines,  and  perhaps 
the  Imperial  Government  was  willing  to  make 
pledges,  which  would  prevent  a  crisis  for  the 
time  being,  until  new  submarines  could  be  con- 
structed. The  word  ''liners'*  was  ambiguous, 
and  ensuing  incidents  would  inevitably  cause  a 
debate  over  its  meaning.     President  Wilson's 

Governments" — with  particular  reference  to  the  Arabic  inci- 
dent. He  repeated  Count  Bernstorff  's  statement  that  *  *  the 
attack  of  the  submarine  to  our  regret,  was  not  in  accordance 
with  their  instructions  issued,  and  that  the  conamander  has 
been  notified  accordingly." 


106    AMERICA'S  CASE  AGAINST  GERMANY 

address  to  Congress  on  the  Sussex  case  indi- 
cated that  he  did  not  consider  it  to  include  more 
than  passenger  vessels,  and  there  was  thus  left 
open  the  question  of  American  seamen  on 
British  vessels  which  carried  no  passengers. 
More  than  that,  the  measure  of  safety  which 
would  be  afforded  noncombatants  in  case  a  liner 
was  sunk  without  warning  was  undefined  and, 
although  a  month  later,  Germany  did  indicate 
her  conception  of  the  duties  imposed  upon  her 
submarines,  the  Arabic  pledges  left  this  ques- 
tion open. 

The  communication  to  which  I  refer  was  sent 
on  November  29th  (although  not  published 
until  January  8,  1916)  and  related  to  the  settle- 
ment of  the  Frye  case.  It  contained  these  para- 
graphs, pertinent  to  the  submarine  controversy 
and  corroborative  of  the  German  pledges : 

**  Until  the  decision  of  the  permanent  court  of  ar- 
bitration, the  German  naval  forces  will  sink  only  such 
American  vessels  as  are  loaded  with  absolute  con- 
traband, when  the  pre-conditions  provided  by  the 
Declaration  of  London  are  present. 

**In  this  the  German  Government  quite  shares  the 
view  of  the  American  Government  that  all  possible 


THE  GEEMAN  PLEDGES  107 

care  must  be  taken  for  the  security  of  the  crew  and 
passengers  of  a  vessel  to  be  sunk.  Consequently,  the 
persons  on  board  of  a  vessel  may  not  be  ordered  into 
her  lifeboats  except  when  the  general  conditions,  that 
is  to  say,  the  weather,  the  condition  of  the  sea,  and 
the  neighborhood  of  the  coasts  afford  absolute  cer- 
tainty that  the  boats  will  reach  the  nearest  port.  For 
the  rest,  the  German  Government  begs  to  point  out 
that  in  cases  where  the  German  naval  forces  have 
sunk  neutral  vessels  for  carrying  contraband  no  loss 
of  life  has  yet  occurred." 

And  in  a  communication  dated  September  9, 
1915  (but  not  published  until  October  29th),  the 
German  Foreign  Office  asserted  that  the  Ameri- 
can bark  Normandy,  from  New  York  to  Liver- 
pool with  a  cargo  of  lumber,  ^^was  permitted 
to  continue  her  voyage  unhindered,  as  it  was 
impossible  to  guarantee  that  the  crew  would  be 
surely  rescued  in  the  small  boats  if  the  ship 
were  sunk. ' '  ^ 

These    statements    were    reassuring.      The 
Lusitania  case  had  not  been  settled,  but  there 

"  This  communication  explained  the  attack  on  the  Orduna. 
See  above,  p.  88.  The  Normandy  also  figured  in  the  sub- 
marine operations  when,  it  was  charged,  she  was  used  as  a 
shield  during  an  attack  on  the  Russian  ship  Leo,  See  above^ 
p.  88. 


108    AMERICA'S  CASE  AGAINST  GERMANY 

were  no  further  outrages  by  submarines,  and 
in  view  of  the  concessions  already  secured,  the 
Administration  probably  feared  that  it  would 
seem  too  insistent  if,  by  reason  of  potential 
dangers,  it  pressed  for  definitions.  More  than 
that,  an  admission  had  been  obtained  that  the 
legal  position  taken  by  the  United  States  was 
unassailable,  and  the  German  argument  had 
been  boiled  down  to  her  assertion  in  the  Lusi- 
tania  note  of  May  28th,  that  the  Imperial  Gov- 
ernment acted  ''in  just  self-defense  when  it 
seeks  to  protect  the  lives  of  its  soldiers  by  de- 
stroying munitions  destined  for  the  enemy  with 
the  means  of  war  at  its  command.''  The  dis- 
avowal of  the  Arabic  and  the  pledges,  although 
not  entirely  satisfactory,  seemed  to  clear  the 
way  for  a  settlement  of  the  Lusitania  contro- 
versy between  Ambassador  Bemstorff  and  Sec- 
retary Lansing. 


CHAPTER  VI 

THE  TRADE  IN  MUNITIONS  OF  WAR 

In  the  communications  from  the  German 
Government  to  the  United  States  concerning 
the  war  zone  decree  and  submarine  blockade 
which  have  already  been  referred  to,  there  oc- 
cur occasional  references  to  the  extensive  trade 
in  munitions  of  war  carried  on  by  American 
citizens.  Thus,  in  the  German  reply  to  Presi- 
dent Wilson's  *^ strict  accountability ' '  note  of 
February  10th,  attention  was  directed  'Very 
particularly  and  with  the  greatest  emphasis'' 
to  the  fact  'Hhat  a  trade  in  arms  exists  between 
American  manufacturers  and  Germany's  ene- 
mies which  is  estimated  at  many  hundred  mil- 
lion marks."  No  formal  breach  of  neutrality 
was  charged,  but  Germany  professed  herself 
^ '  at  a  great  disadvantage  through  the  fact  that 
the  neutral  powers  have  hitherto  achieved  no 
success  or  only  an  unmeaning  success  in  their 

109 


110    AMERICA'S  CASE  AGAINST  GERMANY 

assertion  of  the  right  to  trade  with  Germany, 
acknowledged  to  be  legitimate  by  international 
law,  whereas  they  make  unlimited  use  of  their 
right  to  tolerate  trade  in  contraband  with  Eng- 
land and  our  other  enemies.  Conceded  that  it  is 
the  formal  right  of  neutrals  not  to  protect  their 
legitimate  trade  with  Germany  and  even  to 
allow  themselves  knowingly  and  willingly  to  be 
induced  by  England  to  restrict  such  trade,  it  is 
on  the  other  hand  not  less  their  good  right, 
although  unfortunately  not  exercised,  to  stop 
trade  in  contraband,  especially  the  trade  in 
arms,  with  Germany's  enemies.'' 

The  same  argument  was  made  by  the  German 
Ambassador  in  a  memorandum  which  he  pre- 
sented to  the  State  Department  on  April  4, 
1915.  After  complaining  against  the  British 
trade  restrictions  and  asserting  that  the  lack  of 
success  on  the  part  of  the  United  States  in  se- 
curing a  relaxation  of  the  measures  taken  justi- 
fied the  assumption  that  the  violations  of  inter- 
national law  were  acquiesced  in,  he  adverted  to 
the  attitude  of  the  United  States  on  the  muni- 
tion question.  Here  consideration  should  be 
given  not  only  to  the  formal  aspect  of  the  case 


THE  TRADE  IN  MUNITIONS  OF  WAR    111 

but  also  to  ^Hhe  spirit  in  which  neutrality  is 
carried  out."  He  recognized  that  an  obvious 
retort  was  that  in  previous  wars  Germany  had 
supplied  arms  to  belligerents,  but  the  situation 
now  was  different,  for,  he  said,  "then  it  was  not 
a  question  whether  war  material  should  be  sup- 
plied to  the  belligerents,  but  who  should  supply 
it  in  competition  with  other  nations.  In  the 
present  war  all  nations  having  a  war  material 
industry  worth  mentioning  are  either  involved 
in  the  war  themselves  or  are  engaged  in  per- 
fecting their  own  armaments,  and  have  there- 
fore laid  an  embargo  against  the  exportation 
of  war  material.  The  United  States  is  accord- 
ingly the  only  neutral  country  in  a  position  to 
furnish  war  materials.  The  conception  of  neu- 
trality is  thereby  given  a  new  purport,  inde- 
pendently of  the  formal  question  of  hitherto 
existing  law.  In  contradiction  thereto,  the 
United  States  is  building  up  a  powerful  arms 
industry  in  the  broadest  sense,  the  existing 
plants  not  only  being  worked  but  enlarged  by 
all  available  means,  and  new  ones  built.  The 
international  conventions  for  the  protection  of 
the  rights  of  neutral  nations  doubtless  sprang 


112    AMERICA'S  CASE  AGAINST  GERMANY 

from  the  necessity  of  protecting  the  existing 
industries  of  neutral  nations  as  far  as  possible 
from  injury  in  their  business.  But  it  can  in  no 
event  be  in  accordance  with  the  spirit  of  true 
neutrality  if,  under  the  protection  of  such  in- 
ternational stipulations,  an  entirely  new  indus- 
try is  created  in  a  neutral  state,  such  as  is  the 
development  of  the  arms  industry  in  the  United 
States,  the  business  whereof,  under  the  present 
conditions,  can  benefit  only  the  belligerent 
powers. '^ 

Assuming  a  theoretical  willingness  to  supply 
Germany,  the  case  would  not  be  altered.  If 
America  desired  a  true  neutrality,  the  United 
States  could  prevent  this  one-sided  trade  or  at 
least  utilize  the  weapon  which  it  offered,  and 
by  declaring  an  embargo  protect  legitimate 
trade  with  Germany,  particularly  in  foodstuffs, 
it  being  probable  that  Great  Britain  could  thus 
be  made  to  acquiesce.  Finally,  the  memoran- 
dum requested  that  the  spirit  of  ^ '  genuine  neu- 
trality'^  that  had  actuated  the  United  States  in 
putting  an  embargo  on  the  shipment  of  arms 
to  Mexico  should  dictate  a  similar  policy  in 


THE  TEADE  IN  MUNITIONS  OF  WAR    113 

this  instance.  The  position  of  the  Administra- 
tion had  already  been  stated  very  definitely. 

Orders  were  received  by  American  manufac- 
turers soon  after  the  war  began,  and  on  Octo- 
ber 15th,  in  response  to  requests  as  to  the  legal- 
ity of  the  traffic,  the  State  Department  issued  a 
memorandum  which  informed  the  contractors 
that  they  were  at  liberty  to  meet  any  demands, 
subject  to  the  risk  that,  if  intercepted,  the  goods 
could  be  confiscated  and  destroyed.  The  first 
official  complaint  against  the  attitude  of  the 
United  States,  or  rather  against  the  activities 
of  the  manufacturing  firms,  came  on  December 
8th,  when  Count  Bernstorff  charged  that  the 
English  army  was  using  dumdum  bullets,  fur- 
nished by  an  American  company.  The  State 
Department  replied  a  month  later,  refusing  to 
consider  the  charges,  and  transmitting  cate- 
gorical denials  from  the  companies  that  they 
had  made  any  war  implements  the  use  of  which 
was  not  permitted  by  international  law.^ 

Meanwhile,  the  State  Department  had  taken 

^  This  and  several  other  paragraphs  in  this  chapter  are  taken 
from  an  article  entitled  * '  The  American  Congress  and  the  Ex- 
port of  War  Munitions"  which  I  contributed  to  the  Contem- 
porary Eeview  for  December,  1915. 


114    AMERICA'S  CASE  AGAINST  GERMANY 

a  position  which,  in  the  opinion  of  a  good  many 
able  international  lawyers,  while  commendable 
for  its  motive,  was  too  far  advanced.  The  De- 
partment advised  the  Bethlehem  Steel  Com- 
pany that  the  construction  of  submarine  parts 
for  England,  to  be  assembled  after  delivery, 
would  be  a  violation  of  the  Hague  provision 
that  neutrals  may  not  fit  out  and  arm  war 
vessels  for  a  belligerent.  This  opinion  was  at 
the  request  of  the  President  of  the  Steel  Com- 
pany, and  did  not  follow  any  formal  protest. 
Nevertheless  the  Administration's  apparent 
willingness  to  be  too  strict  led  the  German  Am- 
bassador on  January  18th  to  protest  that  the 
construction  of  hydro-aeroplanes  was  a  viola- 
tion of  the  same  provision.  To  this  the  Secre- 
tary of  State  replied  as  follows: 

**As  to  the  assertion  of  the  character  of  the 
hydro-aeroplanes,  I  submit  the  following  com- 
ments :  The  fact  that  a  hydro-aeroplane  is  fitted 
with  apparatus  to  rise  from  and  alight  upon 
the  sea  does  not,  in  my  opinion,  give  it  the 
character  of  a  vessel  any  more  than  the  wheels 
attached  to  an  aeroplane  fitting  it  to  rise  from 
and  alight  upon  land  give  the  latter  the  charac- 


THE  TEADE  IN  MUNITIONS  OF  WAR    115 

ter  of  a  land  vehicle. '^  ^^The  answer  of  the 
Secretary  of  State  was  a  nugget  of  gold  in  the 
dry  pages  of  diplomatic  correspondence, '  ^  says 
a  recent  writer.  ^^  Presumably,  if  conditions 
were  reversed,  and  the  British  were  protesting 
hydro-aeroplanes  which  were  being  shipped  to 
Germany,  the  ingenious  German  Ambassador 
would  contend  that  the  machines  had  asbestos 
fittings  on  their  wings  and  hence  were  to  be 
classed  as  fireflies.''  ^ 

The  American  position  on  the  general  ques- 
tion was  restated  in  January  when  Secretary  of 
State  Bryan  issued,  in  the  form  of  a  letter  to 
Senator  Stone,  a  denial  of  current  charges  that 
the  United  States,  in  observing  neutrality,  had 
been  unfriendly  to  Germany  and  Austria-Hun- 
gary. This  letter,  written  by  Mr.  Lansing,  re- 
ferred to  the  sales  by  German  manufacturers 
during  the  Eusso-Japanese  War,  and  quoted  a 
memorandum  of  the  Imperial  Government  in 
which  it  was  said  that  ''under  the  general  prin- 
ciples of  international  law,  no  exception  can 
be  taken  to  neutral  states,  letting  war  material 
go  to  Germany's  enemies  from  or  through  neu- 

*  Clapp,  Economic  Aspects  of  the  War,  pp.  296-297. 


116    AMERICA'S  CASE  AGAINST  GERMANY 

tral  territory/'  In  the  United  States,  however, 
those  who  for  various  reasons  desired  an  em- 
bargo, were  on  the  increase  both  in  number  and 
in  power,  so  the  German  Government  was  en- 
couraged to  continue  the  discussion,  not  so 
much  on  the  legal  principle,  as  in  relation  to  our 
controversy  with  Great  Britain,  and  there  fol- 
lowed the  German  communication  of  February 
16th  and  the  Ambassador's  memorandum  of 
April  4th. 

President  Wilson  himself  is  said  to  have 
written  the  reply  to  the  latter  and  it  was  in 
the  nature  of  a  rebuke.  He  declared,  first  of 
all,  that  the  ^ '  relations  of  the  two  Governments 
with  one  another  cannot  wisely  be  made  a  sub- 
ject of  discussion  with  a  third  Government, 
which  cannot  be  fully  informed  as  to  the  facts, 
and  which  cannot  be  fully  cognizant  of  the 
reasons  for  the  course  pursued."  That  the 
United  States  had  ever  yielded  any  of  its  rights 
to  one  of  the  belligerents  was  vigorously  de- 
nied; and  the  note  expressed  surprise  that 
Count  Bernstorff  had  not  referred  to  the  at- 
tempt to  secure  mutual  concessions  from  the 
belligerents,  not  as  of  right  but  as  a  friend  of 


THE  TEADE  IN  MUNITIONS  OF  WAR    117 

both  parties.  The  attempt  was  unsuccessful 
since  Germany,  as  I  have  pointed  out,  gave  but 
a  very  limited  approval,  and  President  Wilson 
regretted  ^'that  your  Excellency  did  not  deem 
it  worthy  of  mention  in  modification  of  the  im- 
pressions you  expressed."  The  note  concluded 
with  the  following  statement : 

''This  Government  holds,  as  I  believe  Your  Excel- 
lency is  aware,  and  as  it  is  constrained  to  hold  in 
view  of  the  present  indisputable  doctrines  of  inter- 
national law,  that  any  change  in  its  own  laws  of  neu- 
trality during  the  progress  of  a  war  which  would 
affect  unequally  the  relations  of  the  United  States 
with  the  nations  at  war  would  be  an  unjustifiable  de- 
parture from  the  principles  of  strict  neutrality  by 
which  it  has  consistently  sought  to  direct  its  actions, 
and  I  respectfully  submit  that  none  of  the  circum- 
stances urged  in  Your  Excellency's  memorandum  al- 
ters the  principle  involved.  The  placing  of  an  em- 
bargo on  the  trade  in  arms  at  the  present  time  would 
constitute  such  a  change  and  be  a  direct  violation  of 
the  neutrality  of  the  United  States.  It  will,  I  feel 
assured,  be  clear  to  Your  Excellency  that,  holding 
this  view  and  considering  itself  in  honor  bound  by 
it,  it  is  out  of  the  questioA  for  this  Government  to 
consider  such  a  course."^ 

' ' '  A  neutral  Power  is  not  bound  to  prevent  the  export  or 
transit,  for  the  use  of  either  belligerent,  of  arms,  ammunitions, 


118    AMEEICA'S  CASE  AGAINST  GEEMANY 

This  position  was  in  exact  consonance  with 
the  traditional  American  attitude  which  need 
not  be  discussed  in  any  great  detail.  The  legal- 
ity of  the  traffic  has  been  maintained  without 
exception.  It  was  first  asserted  during  the 
Napoleonic  Wars,  when,  in  its  efforts  to  pre- 
serve a  strict  and  impeccable  neutrality,  the 
United  States  was  confronted  by  problems, 
which,  comparatively,  were  more  important 
than  those  of  the  present,  for  the  period  was 
one  in  which  the  fundamental  principles  of  neu- 
trality were  being  slowly,  but  definitely  shaped. 
To  a  memorial  protesting  against  shipments  to 
France,  Jefferson  answered  ^Hhat  our  citizens 
have  always  been  free  to  make,  vend,  and  export 
arms;  that  it  is  the  constant  occupation  and 
livelihood  of  some  of  them.  To  suppress  their 
callings,  the  only  means,  perhaps,  of  their  sub- 
sistence, because  a  war  exists  in  foreign  and 

or,  in  general,  of  anything  whicli  could  be  of  use  to  an  armj  or 
fleet/'     (Article  7). 

'*  .  .  .  these  rules  should  not,  in  principle,  be  altered,  in 
the  course  of  the  war,  by  a  neutral  Power,  except  in  a  case 
where  experience  has  shown  the  necessity  for  such  change  for 
the  protection  of  the  rights  of  that  power."  (Preamble.) 
Convention  (XIII)  Concerning  the  Bights  and  Duties  of  Neu- 
tral Powers  in  Naval  War,  Hague  Conference,  1907. 


THE  TRADE  IN  MUNITIONS  OF  WAR    119 

distant  countries,  in  which  we  have  no  concern, 
would  scarcely  be  expected.  It  would  be  hard 
in  principle  and  impossible  in  practice. ' '  Car- 
ried to  its  logical  conclusion,  the  theory  of  an 
embargo  would  necessarily  be  extended  to  cover 
conditional  contraband.  As  Secretary  Seward 
told  the  Mexican  Minister  in  1862 :  ' '  If  Mexico 
shall  prescribe  to  us  what  merchandise  we  shall 
not  sell  to  French  subjects,  because  it  may  be 
employed  in  military  operations  against  Mex- 
ico, France  must  equally  be  allowed  to  dictate 
to  us  what  merchandise  we  shall  allow  to  be 
shipped  to  Mexico,  because  it  might  be  bel- 
ligerently used  against  France.  Every  other 
nation  which  is  at  war  would  have  a  similar 
right,  and  every  other  commercial  nation  would 
be  bound  to  respect  it  as  much  as  the  United 
States.  Commerce  in  that  case,  instead  of  be- 
ing free  or  independent,  would  exist  only  at  the 
caprice  of  war.''  Such  has  been  the  consistent 
American  position,  grounded  in  law  and 
strengthened  by  strong  considerations  of  pol- 
icy, not  only  for  the  specific  reasons  enumerated 
by  Mr.  Seward,  but  for  others  that  will  be  ad- 
verted to  presently. 


120    AMEEICA'S  CASE  AGAINST  GERMANY 

Three  incidents  in  the  diplomatic  history  of 
the  United  States,  however,  have  been  made 
much  of  to  justify  the  claim  of  those  desiring 
an  embargo,  that  such  a  measure  would  not  be 
a  departure  from  all  precedent;  that,  in  fact, 
the  United  States  belongs  to  the  company  of 
belligerents,  who,  during  almost  every  war, 
have  entered  protests  against  munitions  being 
sent  to  their  enemies  by  the  citizens  of  a  neutral 
nation.  First  of  all,  it  is  argued  that  the  so- 
called  French  Arms  debate  in  the  United  States 
Senate  following  the  Franco-Prussian  War 
showed  that  we  had  violated  our  duties  as  a 
neutral,  and  that  the  speech  made  upon  this 
occasion  by  Carl  Schurz  was  a  protest  against 
such  conduct.  But  the  question  at  issue  in  that 
debate  was  not,  as  the  advocates  of  an  embargo 
frequently  allege,  whether  we  had  helped  the 
French  with  arms  and  ammunition ;  on  the  con- 
trary, it  was  whether  the  United  States  had 
been  defrauded  and  officials  had  profited  by  the 
sale  to  France  of  arms  owned  but  discarded 
by  the  United  States  Government.  There  are  a 
good  many  ramifications  to  the  incident,  but  it 
is  clear  that  there  is  no  parallel  to  present  con- 


THE  TEADE  IN  MUNITIONS  OF  WAR    121 

ditions.  The  "War  Department,  moreover,  when 
it  learned  the  destination  of  the  arms,  offered 
Prussia  the  privilege  of  buying  the  same  num- 
ber upon  the  same  terms,  but  the  proposal  was 
declined,  and  Prussia  added  that  she  had  no 
objection  to  the  continuance  of  shipments  to  the 
French.  The  debate  in  the  Senate  was  upon  the 
responsibility  for  the  sales  and  there  was  no 
mention  of  the  condition  which  exists  at  pres- 
ent, namely,  the  transactions  being  conducted 
by  private  individuals  who  manufacture  the 
munitions  which  they  furnish. 

The  second  incident  used  to  charge  incon- 
sistency against  the  United  States  is  that,  dur- 
ing the  Spanish- American  War,  the  American 
Ambassador  to  Germany  requested  the  German 
Government  to  take  ^'vigorous  steps'^  to  pre- 
vent the  shipment  of  even  small  arms  from 
Germany  to  Spain.  The  citation  was  mentioned 
by  Count  Bernstorff  when  he  gave  out  his  mem- 
orandum of  protest  on  April  4th,  but  that  he 
attaches  no  great  importance  to  the  incident  is 
shown  by  the  fact  that  it  does  not  figure  in  any 
of  his  official  communications.    Nevertheless,  in 


122    AMEEICA'S  CASE  AGAINST  GEEMANY 

garbled  forms,  and  often  twisted  to  the  bare 
statement  that  the  United  States  solemnly  pro- 
tested, the  story  has  been  worked  pretty  hard. 
The  facts  have  been  made  public  by  the  Ameri- 
can State   Department. 

**It  appears,"  says  the  Department's  account,  'Hhat 
on  May  18,  1898,  Ambassador  Andrew  D.  White  re- 
ceived a  telephonic  message  from  the  American  con- 
sul at  Hamburg  that  the  Spanish  ship  Pinzon  would 
sail  within  an  hour  for  Cardiff  to  take  on  a  cargo  of 
coal  for  a  Spanish  port;  that  a  part  of  the  message 
was  indistinct,  and  that  it  could  not  be  clearly  un- 
derstood whether  the  ship  was  or  was  not  liable  to 
seizure  on  other  grounds.  The  Ambassador,  there- 
fore, not  desiring  to  incur  delay  by  asking  explana- 
tions went  immediately  to  the  Foreign  Office  and 
asked  for  the  arrest  and  search  of  the  vessel,  and  it 
was  promised  that  everything  possible  should  be  done. 

''On  the  next  morning  the  Ambassador  received  a 
telegram  from  the  American  consul  that  the  Pinzo-n 
when  passing  Cuxhaven  the  preceding  night  was 
searched  for  war  contraband  by  order  of  the  German 
Chancellor,  but  that  nothing  was  found." 

If  the  matter  had  ended  there,  the  United 
States  could  hardly  have  been  accused  of  de- 
parting from  its  traditional  and  consistently 
adhered  to  policy  of  permitting  the  export  of 


THE  TEADE  IN  MUNITIONS  OF  WAE    123 

arms,  and  of  not  objecting  to  the  same  attitude 
on  the  part  of  foreign  governments.  But  when 
news  of  the  incident  reached  the  State  Depart- 
ment, Ambassador  White  was,  on  June  6,  1898, 
sent  the  following  instruction: 

*'In  view  of  the  reported  action  of  the  Imperial 
German  Government  in  directing  the  search  of  the 
Pinzon  for  contraband  of  war,  the  Department  de- 
sires to  be  advised  whether  there  are  any  laws  or 
regulations  in  force  which  forbid  the  shipment  of 
contraband  of  war  from  Hamburg  or  any  other  Ger- 
man port.  It  is  assumed  that  you  can  obtain  such 
information  without  applying  to  the  German  Gov- 
ernment for  it.  It  is  important  that  if  any  such 
laws  or  regulations  exist  this  Government  and  its 
agents  may  be  informed  of  them,  so  as  to  avoid  the 
embarrassments  which  might  arise,  if  it  should  appear 
to  protest  on  the  general  principles  of  international 
law  against  neutral  governments  allowing  articles  re- 
garded merely  as  contraband  of  war  to  be  shipped 
from  their  ports.'' 

In  reply  to  this  instruction,  which  was  almost 
a  reproof,  Mr.  White  later  informed  the  State 
Department  that  there  were  no  laws  on  the 
subject;  the  German  Government  had  issued  no 
proclamation  of  neutrality,  and  the  Reichstag 


124    AMEKICA'S  CASE  AGAINST  GERMANY 

had  not  discussed  the  subject  of  contraband 
since  1894.  Comment  of  my  own  upon  this 
incident  would  be  useless.  When  the  incom- 
plete account  given  by  Mr.  White  in  his  Auto- 
biography (Chap.  XVI,  p.  168)  is  amplified  by 
the  facts  of  the  State  Department's  memoran- 
dum, the  United  States  is  shown  once  more  to 
have  asserted  its  belief  in  the  legality  and  policy 
of  munition  shipments  by  a  neutral. 

More  convincing,  however,  at  least  at  first 
glance,  is  the  precedent  cited  by  the  German 
Ambassador  in  his  memorandum  of  April  4th — 
that  the  United  States  placed  an  embargo  on 
the  export  of  arms  and  munitions  to  Mexico. 
But  the  conditions  which  made  such  action 
seem  advisable  were  entirely  exceptional.  The 
struggle  in  Mexico  was  between  two  civil  fac- 
tions and  menaced  the  peace  of  the  United 
States.  While  the  enforcement  of  an  embargo 
could  not  of  itself  restore  order,  there  was  a 
reasonable  hope  that  it  would  reduce  the  extent 
and  duration  of  the  conflict,  and  in  any  event, 
the  policy  of  the  measure  must  be  considered 
in  the  light  of  the  peculiar  relations  between 
the  United  States  and  Latin  American  coun- 


THE  TRADE  IN  MUNITIONS  OF  WAR    125 

tries,  and  not  as  dictated,  or  even  permitted, 
by  the  general  principles  of  international  law. 
In  fact,  the  executive  order  of  the  President 
raising  the  embargo  (issued  on  February  3, 
1914,  when  there  was  no  likelihood  that  a  Euro- 
pean War  would  soon  present  the  question  of 
restrictive  measures)  declared  the  original 
order  to  have  been  ^^a  departure  from  the  ac- 
cepted practice  of  neutrality. ' '  It  is  submitted, 
therefore,  that  even  were  conditions  similar, 
this  admission  would  prevent  the  Mexican  pol- 
icy from  being  quoted  as  a  binding  precedent. 

Such,  then,  are  the  incidents  in  the  diplomatic 
history  of  the  United  States  that  were  used 
by  those  desiring  an  embargo ;  and  it  is  difficult 
to  see  how  any  conclusion  can  be  reached, 
other  than  that  the  traditional  attitude  of  the 
United  States  has  been  to  permit  its  citizens 
freely  to  export  arms  and  ammunition  to  one 
or  all  of  the  belligerents.  President  Wilson's 
reply  to  Count  Bernstorff' s  memorandum  was 
entirely  appropriate  from  the  standpoint  of  the 
consistent  policy  of  the  United  States,  her  inter- 
ests, and  the  rules  of  international  law. 

Germany's  record  of  sales  of  munitions  in 


126    AMERICA'S  CASE  AGAINST  GERMANY 

previous  wars,  which  she  confessed  but  avoided 
as  binding  precedents  in  view  of  changed  con- 
ditions, made  it  inadvisable  for  her  to  file  any 
formal  remonstrance  and  so  this  was  left  for 
the  Austro-Hungarian  Government  which  on 
June  29,  1915,  sent  the  United  States  a  protest 
against  the  continued  trade  in  munitions.  It 
was  true,  the  note  said,  that  under  the  Hague 
Conventions  the  traffic  was  legal,  and  that  the 
rules  of  international  law  could  not  be  altered 
during  a  war  except  when  necessary  for  the 
protection  of  the  rights  of  the  neutral.    But, 

**  According  to  all  authorities  on  international  law 
who  concern  themselves  more  particularly  with  the 
question  now  under  consideration,  a  neutral  govern- 
ment may  not  permit  traffic  in  contraband  of  war, 
to  be  carried  on  without  hindrance  when  this  traffic 
assumes  such  a  form  or  such  dimensions  that  the  neu- 
trality of  the  nation  becomes  involved  thereby. ' ' 

And  the  suggestion  was  made  that  the  United 
States  might  very  well  ^ '  confront  the  opponents 
of  Austria-Hungary  and  Germany  with  the  pos- 
sibility of  the  prohibition  of  the  exportation  of 
foodstuffs  and  raw  materials'^  in  order  to  com- 
pel Great  Britain  to  rescind  her  illegal  meas- 


THE  TRADE  m  MUNITIONS  OF  WAR    127 

ures  and  to  nullify  'Hhe  wanton  efforts  of  the 
enemies  of  Austria-Hungary  and  Germany  to 
use  hunger  as  an  ally.'' 

Now,  apart  from  the  suggestion  as  to  our 
controversy  with  Great  Britain  the  only  point 
of  any  importance  in  this  communication  is  that 
which  attempts — as  Count  Bernstorff's  memo- 
randum did — to  assert  a  quantitative  norm  as 
determining  whether  the  munitions  trade  can 
go  on  in  accordance  with  true  neutrality.  This 
distinction  was  supported  by  Bluntschli  and  one 
or  two  other  German  jurists;  it  has  never  re- 
ceived anything  approaching  general  support, 
and  has  in  fact  received  its  strongest  condem- 
nation from  German  writers  on  international 
law,  the  vast  majority  of  whom,  as  Secretary 
Lansing  pointed  out  in  his  reply  to  the  Austro- 
Hungarian  communication,  pronounce  the  traf- 
fic unexceptionally  legal.  From  the  standpoint 
of  accepted  international  rules,  this  criterion  is 
novel ;  from  the  standpoint  of  ethical  obligation, 
it  would  be  impossible  of  application.  The 
magnitude  of  exports  must  depend  on  the  size 
of  the  market,  and  this  varies  with  the  scope 
of  the  conflict  and  the  preparation  of  the  bel- 


128    AMERICA'S  CASE  AGAINST  GERMANY 

ligerents.     As  a  distinguished  German  jurist, 
Professor  von  Bar  of  Gottingen,  has  said: 

''If  two  states  go  to  war  with  each  other  the  world 
is  not  bound  to  suspend  its  customary  pursuits  in 
order  to  prevent  one  of  the  belligerents  from  deriv- 
ing an  advantage  oi  suffering  a  disadvantage  in  con- 
sequence of  such  trade.  To  hold  the  contrary  is  to 
assume  that  belligerents,  as  such,  have  a  right  to 
dominate  the  rest  of  the  world.  What  a  belligerent 
has  a  right  to  expect  is  only  that  the  relation  be- 
tween his  adversary  and  neutral  states  shall  remain 
as  they  were  before  the  war;  consequently  the  sub- 
jects of  neutral  states  may  continue  to  maintain  com- 
mercial relations  as  formerly,  and  if  they  manufac- 
ture arms  and  ammunition,  and  have,  before  the  war, 
sold  them  to  everybody,  they  may  continue  to  do  so 
after  the  outbreak  of  the  war,  even  to  belliger- 
ents. .  .  . 

''It  is  wrong,  therefore,  to  denounce,  as  has  often 
been  done,  the  sale  of  arms  by  neutrals  to  belligerents, 
as  a  business  which  pollutes  the  hands  and  honor  of 
neutral  countries.  This  phrase  has  no  more  force 
than  a  tirade  launched  against  a  fire  insurance  com- 
pany on  the  ground  that  it  is  engaged  in  a  miserable 
business  which  draws  its  profits  from  the  misfortunes 
of  others.  "2* 

'a  See  Garner,  "The  Sale  and  Exportation  of  Arms  and 
Munitions   of  War   to   Belligerents,"     American   Journal   of 


THE  TEADE  IN  MUNITIONS  OF  WAR    129 

This  and  other  points  of  the  Austro-Hun- 
garian  memorandum  were  exceptionally  well 
answered  by  Secretary  Lansing's  note  sent  on 
August  12th: 

''To  this  assertion  of  an  obligation  to  change  or 
modify  the  rules  of  international  usage  on  account  of 
special  conditions  the  Government  of  the  United 
States  cannot  accede.  The  recognition  of  an  obliga- 
tion of  this  sort,  unknown  to  the  international  prac- 
tice of  the  past,  would  impose  upon  every  neutral 
nation  a  duty  to  sit  in  judgment  on  the  progress  of 
a  war  and  to  restrict  its  commercial  intercourse  with 
a  belligerent  whose  naval  successes  prevented  the 
neutral  from  trade  with  the  enemy. 

''The  contention  of  the  Imperial  and  Royal  Gov- 
ernment appears  to  be  that  the  advantages  gained 
to  a  belligerent  by  its  superiority  on  the  sea  should 
be  equalized  by  the  neutral  powers  by  the  estab- 
lishment of  a  system  of  nonintercourse  with  the  vic- 
tor. The  Imperial  and  Royal  Government  confines 
its  comments  to  arms  and  ammunition,  but,  if  the 
principle  for  which  it  contends  is  sound,  it  should 
apply  with  equal  force  to  all  articles  of  contraband. 
A  belligerent  controlling  the  high  seas  might  possess 
an  ample  supply  of  arms  and  ammunition,  but  be  in 
want  of  food  and  clothing.     On  the  novel  principle 

International  Law,  Vol.  X,  pp.  749,  755,  and  Proceedings  of  the 
American  Society  of  International  Law,  Vol.  X,  pp.  18,  28. 


130    AMERICA'S  CASE  AGAINST  GEKMAa  i' 

that  equalization  is  a  neutral  duty,  neutral  nations 
would  be  obligated  to  place  an  embargo  on  such  arti- 
cles because  one  of  the  belligerents  could  not  obtain 
them  through  commercial  intercourse. 

''But  if  this  principle,  so  strongly  urged  by  the 
Imperial  and  Royal  Government,  should  be  admitted 
to  obtain  by  reason  of  the  superiority  of  a  belligerent 
at  sea,  ought  it  not  to  operate  equally  as  to  a  bel- 
ligerent superior  on  land?  Applying  this  theory  of 
equalization,  a  belligerent  who  lacks  the  necessary 
munitions  to  contend  successfully  on  land  ought  to 
be  permitted  to  purchase  them  from  neutrals,  while 
a  belligerent  with  an  abundance  of  war  stores  or  with 
the  power  to  produce  them  should  be  debarred  from 
such  traffic. 

''Manifestly  the  idea  of  strict  neutrality  now  ad- 
vanced by  the  Imperial  and  Royal  Government  would 
involve  a  neutral  nation  in  a  mass  of  perplexities 
which  would  obscure  the  whole  field  of  international 
obligation,  produce  economic  confusion  and  deprive 
all  commerce  and  industry  of  legitimate  fields  of  en- 
terprise, already  heavily  burdened  by  the  unavoidable 
restrictions  of  war." 

Attention  was  called  to  the  fact  that  Austria- 
Hungary  and  Germany,  particularly  the  latter, 
had  produced  a  great  surplus  of  arms  and 
ammunition  which  they  sold  to  belligerents ;  and 


THE  TRADE  IN  MUNITIONS  OF  WAR    131 

they  had  not  applied  the  principle  now  advo- 
cated. The  quantities  were  small  when  com- 
pared to  those  of  the  present  war,  but  the  prin- 
ciples involved  were  the  same.  More  than  this, 
on  grounds  of  policy  the  United  States  must 
continue  to  assert  an  unrestricted  right  to  en- 
gage in  an  unrestricted  trade  in  military  sup- 
plies. 

"It  has  never  been  the  policy  of  this  country  to 
maintain  in  time  of  peace  a  large  military  establish- 
ment or  stores  of  arms  and  ammunition  sufficient  to 
repel  invasion  by  a  well-equipped  and  powerful 
enemj^  It  has  desired  to  remain  at  peace  with  all 
nations  and  to  avoid  any  appearance  of  menacing 
such  peace  by  the  threat  of  its  armies  and  navies. 
In  consequence  of  this  standing  policy  the  United 
States  would,  in  the  event  of  attack  by  a  foreign 
power,  be  at  the  outset  of  the  war  seriously,  if  not 
fatally,  embarrassed  by  the  lack  of  arms  and  ammu- 
nition and  by  the  means  to  produce  them  in  sufficient 
quantities  to  supply  the  requirements  of  national  de- 
fense. The  United  States  has  always  depended  upon 
the  right  and  power  to  purchase  arms  and  ammuni- 
tion from  neutral  nations  in  case  of  foreign  attack. 
This  right,  which  it  claims  for  itself,  it  cannot  deny 
to  others. 

"A  nation  whose  principle  and  policy  it  is  to  rely 


132    AMERICA'S  CASE  AGAINST  GERMANY 

upon  international  obligations  and  international  jus- 
tice to  preserve  its  political  and  territorial  integrity 
might  become  the  prey  of  an  aggressive  nation  whose 
policy  and  practice  it  is  to  increase  its  military 
strength  during  times  of  peace  with  the  design  of 
conquest,  unless  the  nation  attacked  can,  after  war 
has  been  declared,  go  into  the  markets  of  the  world 
and  purchase  the  means  to  defend  itself  against  the 
aggressor. 

' '  The  general  adoption  by  the  nations  of  the  world 
of  the  theory  that  neutral  powers  ought  to  prohibit 
the  sale  of  arms  and  ammunition  to  belligerents  would 
compel  every  nation  to  have  in  readiness  at  all  times 
sufficient  munitions  of  war  to  meet  any  emergency 
which  might  arise  and  to  erect  and  maintain  estab- 
lishments for  the  manufacture  of  arms  and  ammuni- 
tion sufficient  to  supply  the  needs  of  its  military  and 
naval  forces  throughout  the  progress  of  a  war.  Mani- 
festly the  application  of  this  theory  would  result  in 
every  nation  becoming  an  anned  camp,  ready  to  re- 
sist aggression,  and  tempted  to  employ  force  in  as- 
serting its  rights  rather  than  appeal  to  reason  and 
justice  for  the  settlement  of  international  disputes. ' '  * 

Secretary  Lansing's  very  able  note  covers 
practically  all  phases  of  the  question,  but  atten- 
tion should  be  directed  to  the  fact  that,  for  any 

*  The  Austro-Hungarian  reply  made  on  September  24th  added 
nothing  to  the  discussion. 


THE  TRADE  IN  MUNITIONS  OF  WAR     133 

restrictive  raeasure  to  accomplish  its  purpose  it 
would  have  to  cover,  to  some  extent  at  least, 
materials  used  in  making  munitions,  for  in  the 
shipment  of  these  we  have  probably  done  the 
greatest  harm  to  Grermany.  Any  embargo 
would,  of  course,  involve  the  danger  that  we 
would  make  ourselves  liable  for  damage  done 
as  a  result  of  exports  which  had  taken  place 
in  violation  of  law.  Applied  only  to  munitions, 
the  measure  would  impose  a  burden  that  would 
soon  prove  to  be  intolerable;  ultimate  as  well 
as  primary  destination  would  have  to  be  in- 
quired into  unless  the  restriction  was  absolute, 
and  even  then  a  small  army  of  officials  would 
be  required  to  make  it  effective.  But  where 
would  the  line  be  drawn!  Would  the  embargo 
apply  only  to  absolute  contraband  or  to  con- 
ditional as  well?  The  practical  difficulties 
would  seem  to  be  well  nigh  insurmountable. 
Food  is  even  more  essential  to  England  than 
munitions;  yet  to  supply  this  would  not  be 
deemed  unneutral  by  any  one. 

It  is  evident,  therefore,  that  the  refusal  of 
the  United  States  Government  to  restrict  the 
trade  in  munitions  was  abundantly  justified  by 


134    AMERICA'S  CASE  AGAINST  GERMANY 

its  traditional  practice;  by  its  own  interests 
which  require  that  in  order  not  to  become  an 
armed  camp  it  be  permitted,  when  a  belligerent, 
to  buy  military  stores  from  neutrals ;  by  definite 
provisions  of  international  law,  the  change  of 
which  during  the  progress  of  a  war  so  as  to 
deprive  one  group  of  belligerents  of  the  ad- 
vantages which  they  have  derived  through  su- 
perior sea-power  would  be  unneutral;  by  the 
difficulty  of  drawing  any  logical  line,  and  the 
impossibility  and  danger  of  enforcing  a  re- 
strictive measure. 

A  rule  of  international  law  and  a  very  gen- 
eral practice  sanctioned  by  the  vast  majority 
of  authorities,  must,  it  is  submitted,  have  some 
ethical  justification.  That  the  shipments  of  war 
materials  from  the  United  States  have  been  suf- 
ficiently large  to  play  any  decisive  part  in  the 
European  struggle,  is,  I  think,  extremely  doubt- 
ful. But,  assume  that  this  country,  through  the 
trade  of  its  citizens,  is  actually  taking  part  in 
the  war.  Here  again  our  legal  position  would 
be  impeccable,  and  our  moral  position  also,  for, 
in  the  last  analysis,  the  question  would  be  an- 
swered by  our  sympathies.    At  the  time  Ger- 


THE  TRADE  IN"  MUNITIONS  OF  WAR    135 

many  invaded  Belgium,  the  United  States  en- 
tered no  formal  protest,  but  its  citizens  pro- 
tested then,  and  their  condemnation  of  Ger- 
many has  ever  been  more  bitter — augmented  by 
the  Lusitania  and  other  outrages,  the  many 
atrocities  alleged,  diplomatic  arrogance,  and  in- 
sidious propaganda.  Above  all  considerations 
of  the  legality  of  restriction  the  United  States 
would  be  unwilling,  through  an  embargo,  to 
assist  Germany  to  a  successful  outcome  of  her 
conspiracy  against  the  peace  of  the  world. 
This,  after  all,  is  a  very  potent  issue,  and 
American  public  opinion  would  suffer  no  re- 
fusal to  continue  a  policy  that  is  legal,  whose 
disregard  would  be  unfriendly,  and  that,  per- 
sisted in,  would  aid  in  some  small  measure  those 
noble  peoples  (now  our  Allies)  who  were  fight- 
ing for  a  better  civilization. 

This  discussion  of  the  trade  in  war  materials 
has  been  ventured  in  order  to  make  more  com- 
plete the  sketch  of  the  diplomatic  exchanges 
between  the  United  States  and  Germany  during 
the  present  war.  But,  as  I  have  already  indi- 
cated, the  munitions  trade  was  bound  up  in  the 


136    AMERICA'S  CASE  AGAINST  GERMANY 

German  notes  with  the  submarine  warfare. 
There  is  no  logical  connection,  for,  while  a  neu- 
tral government  may  not  itself  furnish  supplies 
to  a  belligerent,  individuals  may  engage  in  such 
a  trade  at  their  own  risk.  That  is  to  say,  the 
contraband  articles  which  are  shipped,  and  the 
vessels  which  carry  them  are  liable  to  capture 
and  confiscation.  This  is  the  sole  penalty  which 
international  law  attempts  to  impose  upon  a 
trade  in  contraband.  The  character  of  a  ves- 
sel's cargo  does  not,  therefore,  furnish  any  jus- 
tification for  a  change  in  the  rule.  Those  en- 
gaged in  carrying  the  contraband  cannot  be 
punished ;  if  neutrals,  they  cannot  even  be  made 
prisoners  of  war.  The  sole  penalty,  to  repeat, 
is  the  loss  by  the  owners  of  the  cargo  and  of 
the  vessel.  It  is  thus  seen  that  it  is  absolutely 
immaterial  what  a  particular  vessel  contains 
when  it  is  overtaken  by  a  submarine.  The  sa- 
cred immunities  of  the  noncombatants  on  board 
are  the  same,  and  the  taking  of  their  lives  can- 
not be  justified  on  the  ground  that  they  are 
engaged  in  a  traffic,  which,  however  objection- 
able to  one  of  the  belligerents,  is  recognized 
by  international  law.    And,  in  fact,  while  jus- 


THE  TRADE  IN"  MUNITIONS  OF  WAR    137 

tifying  her  submarine  warfare  on  the  ground 
that  it  was  a  reprisal  for  the  illegal  British 
Orders  in  Council,  Germany  has  not  claimed 
that  rules  of  international  law  and  considera- 
tions of  humanity  give  her  any  greater  license 
with  regard  to  the  crew  or  passengers  on  con- 
traband-carrying boats.  The  justice  of  the 
trade  in  munitions  seems,  on  the  contrary,  to 
have  been  injected  into  the  diplomatic  ex- 
changes for  the  same  reason  that  the  protest 
against  the  use  of  the  neutral  flag  was  made — 
to  attempt  to  coerce  the  United  States  into  a 
position  which  would  illegally  operate  to  the 
detriment  of  the  Allies,  with  the  alternative,  for 
refusal,  of  an  inhuman  and  illegal  disregard 
for  the  lives  of  all  noncombatants — ^neutral  as 
well  as  enemy — on  the  high  seas.^ 

"  Although  it  does  not  seem  to  have  figured  in  the  exchanges, 
attention  may  be  called  to  the  fact  that  the  Prussian  treaties 
(see  above,  p.  62)  expressly  justify  a  trade  in  contraband  by 
one  of  the  parties  when  the  other  is  a  belligerent.  These 
treaties  have  been  accepted  by  Germany  as  fully  binding. 


CHAPTER   VII 

SUBMAEINE  WAEFARE  IN  THE  MEDITERRANEAN- 

The  German  pledges  which  have  been  de- 
scribed came  simultaneously  with  a  marked  de- 
crease of  the  activity  of  submarines  in  the  wa- 
ters around  Great  Britain ;  and  the  opinion  has 
already  been  ventured  that  perhaps  so  many 
had  been  destroyed  that  it  seemed  to  the  Im- 
perial Government  the  best  plan  to  accede  to  the 
American  demand's  pending  the  completion  of 
the  many  and  more  powerful  undersea  boats 
which  were  contemplated.  In  the  Mediterra- 
nean, however,  a  new  campaign  was  inaugu- 
rated, apparently  participated  in  by  both  Ger- 
man and  Austrian  submarines.  American  in- 
terests were  vitally  affected  when  the  Italian 
liner  Ancona,  bound  from  Naples  to  New  York, 
was  sunk  in  the  Mediterranean  without  warning 
(November  7th)  and  more  than  two  hundred 
passengers  lost  their  lives,  among  them  Ameri- 

138 


SUBMARINES  IN  MEDITEERANEAN     139 

can  citizens.  After  a  month's  delay  in  order 
to  be  sure  of  the  facts,  President  Wilson  ad- 
dressed a  note — in  some  respects  the  strongest 
of  those  published — to  the  Austro-Hungarian 
Government.     He  said: 

"The  Government  of  the  United  States  considers 
that  the  commander  violated  the  principles  of  inter- 
national law  and  of  humanity  by  shelling  and  torpe- 
doing the  A7ico7ia  before  the  persons  on  board  had 
been  put  in  a  place  of  safety  or  even  given  sufficient 
time  to  leave  the  vessel.  The  conduct  of  the  com- 
mander can  only  be  characterized  as  wanton  slaugh- 
ter of  defenseless  noncombatants,  since  at  the  time 
when  the  vessel  was  shelled  and  torpedoed  she  was 
not,  it  appears,  resisting  or  attempting  to  escape ;  and 
no  other  reason  is  sufficient  to  excuse  such  an  attack, 
not  even  the  possibility  of  rescue. ' ' 

The  United  States,  therefore,  was  forced  to 
conclude  either  that  the  commander  of  the  sub- 
marine failed  to  act  in  accordance  with  his  in- 
structions or  that  Austria-Hungary  had  not 
issued  to  its  under-sea  boats  the  same  orders 
that  had  been  announced  by  Germany  ^'in  ac- 
cordance with  the  law  of  nations  and  the  prin- 
ciples of  humanity. ' '  This  latter  alternative  the 


140    AMERICA'S  CASE  AGAINST  GERMAXY 

United  States  was  reluctant  to  believe  for  it 
would  have 

*'to  credit  the  Austro-Hungarian  Government  with 
an  intention  to  permit  its  submarines  to  destroy  the 
lives  of  helpless  men,  women,  and  children.  It  pre- 
fers to  believe  that  the  commander  of  the  submarine 
committed  this  outrage  without  authority  and  con- 
trary to  the  general  or  special  instructions  which  he 
had  received. 

"As  the  good  relations  of  the  two  countries  must 
rest  upon  a  common  regard  for  law  and  humanity,  the 
Government  of  the  United  States  cannot  be  expected 
to  do  otherwise  than  to  demand  that  the  Imperial  and 
Royal  Government  denounce  the  sinking  of  the  An- 
cona  as  an  illegal  and  indefensible  act;  that  the  offi- 
cer who  perpetrated  the  deed  be  punished;  and  that 
reparation  by  the  payment  of  an  indemnity  be  made 
for  the  citizens  of  the  United  States  who  were  killed 
or  injured  by  the  attack  on  the  vessel. 

*  *  The  Government  of  the  United  States  expects  that 
the  Austro-Hungarian  Government,  appreciating  the 
gravity  of  the  case,  will  accede  to  its  demand 
promptly;  and  it  rests  this  expectation  on  the  belief 
that  the  Austro-Hungarian  Government  will  not 
sanction  or  defend  an  act  which  is  condemned  by  the 
world  as  inhumane  and  barbarous,  which  is  abhorrent 
to  all  civilized  nations,  and  which  has  caused  the 
death  of  innocent  American  citizens." 


SUBMARINES  IN  MEDITERRANEAN     141 

These  were  strong  words  and  indicated  that 
the  United  States  was  tired  of  temporizing; 
that  the  submarines  must  conduct  their  opera- 
tions so  as  to  safeguard  the  lives  of  noncom- 
batants,  with  the  alternative  of  having  diplo- 
matic relations  severed. 

Austria's  reply,  made  on  December  15th,  was 
a  very  evasive  and  in  some  respects  impertinent 
document.  It  said  that  the  '^sharpness  with 
which  the  Government  of  the  United  States  con- 
siders it  necessary  to  blame  the  commanding 
officer  of  the  submarine''  was  not  justified  by 
any  specification  of  the  exact  circumstances  of 
the  sinking;  that  the  number,  names,  and  fate 
of  the  American  citizens  on  board  were  not 
enumerated;  that  no  juridical  reasons  for  the 
demands  were  given  but  in  lieu  thereof  the  cor- 
respondence with  Germany  was  referred  to,  and 
Austria-Hungary  had  no  authentic  knowledge 
of  all  the  pertinent  conmaunications ;  and  that 
the  Dual  Monarchy  ^ '  must,  in  order  to  preclude 
possible  misunderstandings,  declare  that  as  a 
matter  of  course  it  reserves  to  itself  full  free- 
dom of  maintaining  its  own  legal  views  in  the 
discussion  of  the  case  of  the  Ancona/^    Aus- 


142    AMERICA'S  CASE  AGAINST  GERMANY 

tria-Hungary,  the  note  concluded,  ^^in  no  less 
degree  than  the  American  Government  and  un- 
der all  circumstances  sincerely  deplores  the  fate 
of  the  innocent  victims  of  the  incident  in  ques- 
tion.'' 

The  American  demands  were  repeated  imme- 
diately. They  quoted  the  Austro-Hungarian 
Charge  d 'Affaires  at  Washington  as  communi- 
cating to  the  Department  of  State  subsequent 
to  the  sinking,  an  admiralty  report  in  which  it 
was  admitted  that  the  vessel  had  been  sunk 
while  her  engines  were  stopped  and  passengers 
were  still  on  board. 

''This  admission  alone  is,  in  the  view  of  the  Gov- 
ernment of  the  United  States,  sufficient  to  fix  upon 
the  commander  of  the  submarine  \v^hich  fired  the  tor- 
pedo the  responsibility  for  having  willfully  violated 
the  recognized  law  of  nations  and  entirely  disregarded 
those  humane  principles  which  every  belligerent 
should  observe  in  the  conduct  of  war  at  sea.  In 
view  of  these  admitted  circumstances  the  Government 
of  the  United  States  feels  justified  in  holding  that 
the  details  of  the  sinking  of  the  Ancona,  the  weight 
and  character  of  the  additional  testimony  corroborat- 
ing the  Admiralty 's  report,  and  the  number  of  Amer- 
icans killed  or  injured  are  in  no  way  essential  mat- 


SUBMAEINES  IN  MEDITERRANEAN     143 

ters  of  discussion.  The  culpability  of  the  commander 
is  in  any  case  established,  and  the  undisputed  fact 
is  that  citizens  of  the  United  States  were  killed,  in- 
jured, or  put  in  jeopardy  by  his  lawless  act. 

''The  rules  of  international  law  and  the  principles 
of  humanity  which  were  thus  willfully  violated  by 
the  commander  of  the  submarine  have  been  so  long 
and  so  universally  recognized  and  are  so  manifest 
from  the  standpoint  of  right  and  justice  that  the 
Government  of  the  United  States  does  not  feel  called 
upon  to  debate  them  and  does  not  understand  that 
the  Imperial  and  Royal  Government  questions  or 
disputes  them.'' 

To  the  United  States,  therefore,  the  only 
course  open  was  to  hold  the  Imperial  and  Koyal 
Government  responsible  for  the  act  of  its  com- 
mander and  to  renew  the  demands  of  the  pre- 
vious communication.  The  seriousness  of  the 
incident  and  the  necessity  for  compliance  were 
again  intimated  in  the  concluding  warning  that 
the  United  States  ^^  sincerely  hopes  that  the 
foregoing  statement  of  its  position  will  enable 
the  Imperial  and  Eoyal  Government  to  perceive 
the  justice  of  those  demands  and  to  comply  with 
them  in  the  same  spirit  of  frankness  and  with 
the  same  concern  for  the  good  relations  now 


144    AMERICANS  CASE  AGAINST  GERMANY 

existing  between  the  United  States  and  Austria- 
Hungary  which  prompted  the  Government  of 
the  United  States  to  make  them.'' 

In  response  to  this  (December  29th),  Austria- 
Hungary  expressed  itself  in  thorough  agree- 
ment with  the  Washington  cabinet  *Hhat  even 
in  war  the  sacred  demands  of  humanity  must 
be  complied  with/'  And  agreement  was  ex- 
pressed also  with  the  principle  ''that  hostile 
private  ships,  in  so  far  as  they  do  not  flee  or 
offer  resistance,  may  not  be  destroyed  without 
the  persons  on  board  having  been  placed  in 
safety."  This  was  an  important  admission  and 
conceded  practically  everything  that  the  United 
States  was  contending  for.  The  note  then  went 
on  to  outline  the  evidence  secured  by  an  investi- 
gation and  to  discuss  the  circumstances  of  at- 
tack— in  contradiction  of  the  American  view  as 
to  the  damage  done  after  the  Ancona  had 
stopped — and  the  responsibility  for  the  loss  of 
life.  While  the  vessel  was  torpedoed  after  it 
had  ceased  the  attempt  to  get  away,  the  Im- 
perial and  Koyal  Government  asserted  that  in- 
expert launching  of  the  lifeboats  and  failure  of 


SUBMAEINES  IN  MEDITERRANEAN  1-15 

the  crew  to  put  the  passengers  in  a  place  of 
safety  were  responsible. 

The  officer  in  command  of  the  submarine  had 
been  ^^  punished  in  accordance  with  the  rules  in 
force  in  this  matter  for  exceeding  his  instruc- 
tions/' and  while  the  case  of  the  Ancona  could 
be  regarded  as  having  been  cleared  up,  the 
Imperial  and  Koyal  Government  reserved  ^^to 
itself  for  a  future  time  the  discussion  of  the 
difficult  questions  of  international  law  in  con- 
nection witn  submarine  warfare. ' '  ^ 

*  In  respect  to  the  indemnity  to  American  citizens,  the  fol- 
lowing observations  were  offered:  ''As  a  matter  of  course  the 
investigation  into  the  sinking  of  the  Ancona  could  not  estab- 
lish to  what  degree  American  citizens  are  entitled  to  a  claim 
for  indemnity.  Even  according  to  the  view  of  the  Washington 
Cabinet,  the  Imperial  and  Eoyal  Government  can  not  be  held 
answerable  for  the  injuries  which  were  caused  by  the  undoubt- 
edly justified  firing  upon  the  fleeing  ship.  Just  as  little  might 
it  have  to  answer  for  the  injuries  which  occurred  before  the 
torpedoing  due  to  the  faulty  rigging  out  of  the  boats  or  to  the 
capsizing  of  the  boats  which  had  been  lowered. 

''The  Imperial  and  Eoyal  Government  must  assume  that  the 
Washington  Cabinet  is  able  and  willing  to  furnish  it  with  the 
information  which  is  required  in  this  respect  and  which  is  cer- 
tainly not  immaterial.  However,  should  the  more  precise  cir- 
cumstances under  which  the  American  citizens  were  injured  be 
unknown  to  the  Government  of  the  United  States  due  to  a 
lack  of  the  proper  material  evidence,  the  Government  of  the 
Imperial  and  Eoyal  Government  in  consideration  of  the  hu- 
manely deeply  deplorable  incident,  and  guided  by  the  desire 


146    AMERICA'S  CASE  AGAINST  GERMANY 

This  reply  was  encouraging,  but  the  satisfac- 
tion was  short-lived  ^  for  almost  immediately 
word  was  received  of  the  sinking  of  the  Penin- 
sular &  Oriental  liner  Persia  off  the  coast  of 
Crete  on  December  30th.  More  than  two  hun- 
dred noncombatants  lost  their  lives,  among 
them  an  American  consul.  Secretary  Lansing 
at  once  instructed  the  American  ambassadors 
at  Berlin  and  Vienna  to  make  informal  in- 
quiries looking  to  the  nationality  of  the  sub- 
marine responsible.    The  facts  are  not  yet  clear 

of  again  manifesting  to  the  Government  of  the  United  States 
its  friendly  sentiments,  would  be  readily  willing  to  overlook 
this  gap  in  the  evidence  and  to  extend  the  indemnity  also  to 
those  injuries  the  direct  cause  of  which  could  not  be  ascer- 
tained. ' ' 

'  On  December  5,  1915,  the  American  ship  PetroUte  had  been 
shelled  by  a  submarine  and  compelled  to  furnish  it  supplies. 
The  commander  of  the  submarine  explained  the  firing  on 
the  ground  that  he  thought  that  the  American  flag  was  a  ruse 
de  guerre  and  that  the  vessel  was  attempting  to  ram  him. 
Negotiations  dragged  and  on  July  21,  1916,  in  the  last  pub- 
lished communication  to  Austria-Hungary,  Secretary  of  State 
Lansing  denounced  ' '  the  conduct  of  the  commander  of  the  sub- 
marine in  attacking  the  PetroUte  and  in  coercing  the  captain  as 
a  deliberate  insult  to  the  flag  of  the  United  States  and  an  in- 
vasion of  the  rights  of  American  citizens  for  which  this  Gov- 
ernment requests  that  an  apology  be  made;  that  the  com- 
mander of  the  submarine  be  punished;  and  that  reparation  be 
made  for  the  injuries  sustained  by  the  payment  of  a  suitable 
indemnity. ' ' 


SUBMAEINES  IN  MEDITEREANEAN"     147 

as  Germany,  Austria-Hungary,  and  Turkey 
have  all  denied  that  one  of  their  submarines 
sank  the  vessel,  but  it  is  certain  that  the  force- 
ful language  of  the  United  States  had  but  slight 
effect  since  two  other  passenger  steamers  were 
sunk  without  warning  in  the  Mediterranean — 
the  Japanese  liner  Yasaka  Maru  on  December 
21st  and  the  French  liner  Ville  de  la  Ciotat  on 
December  24th. 

But  Ambassador  Bernstorft  again  came  to 
the  fore  on  January  7th  with  renewed  pledges : 

*'l.  German  submarines  in  the  Mediterranean  had, 
from  the  beginning,  orders  to  conduct  cruiser  warfare 
against  enemy  merchant  vessels  only  in  accordance 
with  general  principles  of  international  law,  and  in 
particular  measures  of  reprisal,  as  applied  in  the  war 
zone  around  the  British  Isles,  were  to  be  excluded. 

"2.  German  submarines  are  therefore  permitted  to 
destroy  enemy  merchant  vessels  in  the  Mediterranean 
— i.  e.,  passenger  as  well  as  freight  ships  as  far  as 
they  do  not  try  to  escape  or  offer  resistance — only 
after  passengers  and  crews  have  been  accorded  safety. 

*'3.  All  cases  of  destruction  of  enemy  merchant 
ships  in  the  Mediterranean  in  which  German  subma- 
rines are  concerned  are  made  the  subject  of  official 
investigation  and,  besides,  submitted  to  regular  prize 


148    AMEEICA'S  CASE  AGAINST  GERMANY 

court  proceedings.  In  so  far  as  American  interests 
are  concerned,  the  German  Government  will  com- 
municate the  result  to  the  American  Government. 
Thus  also  in  the  Persia  case  if  the  circumstances 
should  call  for  it. 

''4.  If  commanders  of  German  submarines  should 
not  have  obeyed  the  orders  given  to  them,  they  will 
be  punished ;  furthermore,  the  German  Government 
will  make  reparation  for  damage  caused  by  death  of 
or  injuries  to  American  citizens."^ 

These  pledges  were  of  course  tantamount  to 
further  admissions  that  the  submarine  cam- 
paign was  illegal;  but  Count  Bemstorff's  prom- 
ise in  settlement  of  the  Arabic  incident  was,  in 
the  immunity  given  ^ Miners,"  not  limited  to 
locality  and  read  in  connection  with  the  asser- 
tions of  the  German  note  of  May  4th,  replying 
to  our  ultimatum  in  the  Sussex  case,  cast  doubt 
on  the  bona  fides  of  all  the  pledges.  In  this 
communication — which  will  be  treated  more  in 
detail  later — Germany  said  that  no  assurances 
had  been  given  the  United  States  concerning 
the  warfare  against  enemy  trade  in  enemy  ves- 

'At  the  time  these  pledges  were  made.  Secretary  Lansing 
published  the  note  of  November  29,  1915  concerning  the  Frye 
case  and  defining  the  measure  of  safety  to  be  accorded  those  on 
vessels  that  were  to  be  sunk.     See  above,  p.  106. 


SUBMAEINES  IN  MEDITEEKANEAN     149 

sels — yet  the  note  of  September  1st  in  promis- 
ing that  '^ liners''  would  not  be  sunk  without 
warning  surely  was  calculated  to  convey  a  con- 
trary impression  to  the  American  people.  But 
before  this  open  avowal  of  May  4th,  the  local- 
ity mentioned  in  this  pledge  of  January  7th  was 
sufficient  to  cause  many  doubts  to  be  cast  upon 
the  sincerity  of  the  German  undertakings. 

Nevertheless,  the  ^^conversations"  between 
Secretary  Lansing  and  Count  Bernstorff  over 
the  Lusitania  continued,  and  there  were  pro- 
longed negotiations  during  which,  it  was  re- 
ported, diplomatic  relations  were  several  times 
on  the  point  of  being  broken  off  because  Ger- 
many refused  to  admit  that  her  act  was  unjus- 
tifiable. The  exact  terms  of  the  settlement  have 
not  been  made  public,  but  their  general  nature 
has  been  the  subject  of  apparently  inspired 
newspaper  reports.  Germany,  in  view  of  the 
fact  that,  contrary  to  her  own  interpretation  of 
international  law,  the  United  States  did  not  con- 
sider reprisals  legal,  admitted  that  the  attack 
on  the  Lusitania  was  unjustifiable  so  far  as  it 
involved  the  lives  of  neutrals,  agreed  to  pay  an 
indemmity  for  the  American  lives  lost  ^'as  an 


150    AMERICA'S  CASE  AGAINST  GERMANY 

act  of  liability, ' '  and  promised  that  the  outrage 
would  not  be  repeated.* 

But  on  February  8th,  while  the  negotiations 
neared  a  conclusion,  Germany  announced  a  new 
policy  toward  armed  merchantmen  which  wiped 
out  her  repeated  pledges,  vitiated  the  Lusitania 
agreement,  and  reopened  the  whole  submarine 
controversy.  For  the  attitude  of  the  United 
States  was  that  in  sinking  the  Lusitania  Ger- 
many had  committed  a  hostile  act  which  would 
have  to  be  disavowed  with  offers  of  reparation 
in  order  that  diplomatic  relations  might  con- 
tinue between  the  two  powers,  and  pending  any 
attitude  on  Germany's  part  other  than  an  inten- 
tion to  abide  by  her  pledges,  the  settlement 
would  not  be  proceeded  with. 

Before  considering  the  question  of  armed 
merchantmen,  which  in  some  respects  raises 
more  difficult  points  of  international  law  than 
any  other  phase  of  the  controversy,  it  may  be 
well  to  enumerate  briefly  once  more  just  what 
concessions  the  United  States  had  thus  far  se- 

*The  last  point  of  difference  was  as  to  whether  Germany 
would  "assume"  or  "admit"  liability  and  the  latter  word 
was  assented  to  by  Berlin  on  February  15th. 


SUBMAEINES  IN  MEDITERRANEAN"     151 

cured.  Austria- Hungary  had  in  general  agreed 
to  abide  by  existing  international  rules — al- 
though contrary  to  the  demands  of  the  first 
Lusitania  note  submarines  could  be  used 
against  merchant  ships  if  the  safety  of  those 
on  board  was  assured — and  this  pledge  was 
joined  in  by  Germany  so  far  as  the  Mediterra- 
nean operations  were  concerned.^  In  the  so- 
called  war  zone  around  the  British  Isles  the 
pledges  were  limited  only  to  ^ Miners'*  that  did 
not  attempt  to  escape,  and  while  the  right  of 
American  vessels  to  traverse  this  war  zone  was 
apparently  admitted,  Germany  did  not  consider 
^'unfortunate  accidents"  in  sinking  them  illegal 
but  simply  as  imposing  liability  on  her  under 

'  One  other  incident  caused  further  exchanges  between  the 
United  States  and  Austria-Hungary.  On  April  11,  1916,  the 
Russian  bark  Imperator  was  destroyed  by  an  Austrian  sub- 
marine in  the  Mediterranean  and  an  American  citizen  was 
wounded.  It  was  explained  that  after  the  vessel  had  been 
warned  by  a  shot  across  her  bows,  no  disposition  was  shown  on 
the  part  of  the  crew  to  abandon  her.  A  second  shot  was  fired 
through  the  rigging.  The  crew  then  embarked  in  boats,  and 
of  two  sailors  who  had  been  wounded,  neither  was  an  American 
citizen.  According  to  the  ship's  papers  there  was  only  one 
American  citizen  on  board,  and  if,  ' '  to  the  regret  of  the 
Austro-Hungarian  authorities,"  he  was  wounded,  the  explana- 
tion was  that  'Hhe  bark  failed  to  comply  with  the  submarine's 
challenge  to  stop  when  ordered.'^ 


152     AMERICA'S  CASE  AGAINST  GERMANY 

the  old  Prussian  treaties.  Finally,  the  measure 
of  safety  to  be  accorded  was  but  poorly  defined. 
Nevertheless,  while  relinquishing  the  interna- 
tional spirit  of  the  first  Lusitania  note  that  sub- 
marines were  not  adapted  for  cruiser  warfare 
on  commerce,  the  United  States  had  conceded 
none  of  its  neutral  rights.  But  all  these  ques- 
tions were  again  opened,  with  the  position  of 
the  United  States  more  assailable,  by  the  an- 
nouncement that  after  March  1st  all  armed  pri- 
vate ships  would  be  sunk  without  warning. 


CHAPTER   Vni 


AEMED    MEKCHANTMEN" 


At  the  outbreak  of  the  war  the  American  De- 
partment of  State  had  very  definitely  passed 
upon  the  question  of  armed  merchantmen.  The 
British  Embassy  at  Washington  informed  the 
Secretary  of  State  that  a  certain  number  of 
merchantmen  had  been  armed,  but  solely  for 
defense,  and  that  since  the  British  naval  regu- 
lations did  not  permit  the  conversion  of  mer- 
chantmen into  warships  on  the  high  seas  or  in 
neutral  ports,  these  armed  merchantmen  did 
not  have  even  a  potential  combatant  status. 
These  communications  were  merely  acknowl- 
edged, but  on  September  19,  1914,  the  Depart- 
ment of  State  issued  a  comprehensive  memo- 
randum defining  the  status  of  merchant  ships 
carrying  guns. 

The  memorandum  stated  that  a  merchant  ves- 
sel of  belligerent  nationality  might  carry  an 

153 


154    AMERICA'S  CASE  AGAINST  GERMAISrY 

armament  for  the  sole  purpose  of  defense  with- 
out acquiring  the  character  of  a  ship  of  war, 
but  that  the  presence  on  board  of  an  arma- 
ment created  a  presumption  that  it  was  for 
offensive  purposes.  This  might  be  rebutted  by 
suitable  proof  that  the  number  of  guns  was 
small  and  that  their  caliber  did  not  exceed  six 
inches ;  that  they  were  not  mounted  on  the  for- 
ward part  of  the  vessel;  that  the  quantity  of 
ammunition  was  small;  that  the  ship  carried 
only  its  usual  crew ;  that  the  purpose  to  engage 
in  trade,  as  before  the  outbreak  of  war,  was 
clearly  evident,  only  sufficient  fuel  for  this  pur- 
pose being  carried;  that  the  cargo  was  not 
suited  for  a  vessel  engaging  in  hostile  opera- 
tions; that  passengers  were  carried,  and  that 
the  speed  of  the  ship  was  slow. 

Against  this  ruling  Germany  protested  on 
the  ground  that  it  failed  ^'to  comply  mth  the 
principles  of  neutrality.  This  equipment  of 
British  merchant  vessels  with  artillery  is  for 
the  purpose  of  making  armed  resistance  against 
German  cruisers.  Eesistance  of  this  sort  is  con- 
trary to  international  law,  because,  in  a  military 
sense,  a  merchant  vessel  is  not  permitted  to  de- 


AEMED  MEECHANTMEX  155 

fend  itself  against  a  war  vessel. '  ^  This  protest 
was  received  on  October  15th  and  the  reply  of 
the  United  States  was  made  on  November  7th. 
It  said  that  ''the  practice  of  a  majority  of  na- 
tions and  the  consensus  of  opinion  by  the  lead- 
ing authorities  on  international  law,  including 
many  German  writers,  support  the  proposition 
that  merchant  vessels  may  arm  for  defense 
without  losing  their  private  character,  and  that 
they  may  employ  such  armament  against  hostile 
attack  without  contravening  the  principles  of 
international  law/' 

Now,  this  was  a  vigorous  and  exact  state- 
ment of  the  accepted  international  law  of  the 
question.  Chief  Justice  Marshall  in  the  famous 
case  of  the  Nereide  had  decided  that  a  bellig- 
erent vessel  had  a  perfect  right  to  arm  in  self- 
defense  and  that  a  neutral  had  a  right  to  trans- 
port his  goods  in  such  an  armed  vessel.  The 
armed  vessel  in  this  case  ''had  a  right  to  defend 
herself,  did  defend  herself,  and  might  have  cap- 
tured an  assailing  vessel ;  but  to  search  for  the 
enemy  would  have  been  a  violation  of  her  char- 
ter party  and  of  her  duty.'' 

The  practice  of  arming  ships  in  self-defense 


156    AMEEICA'S  CASE  AGAINST  GERMANY 

is  a  very  old  one,  and  dates  from  the  time  when 
the  seas  were  infested  by  pirates.  With  the 
disappearance  of  pirates  and  the  abolition  by 
the  Declaration  of  Paris  (1856)  of  privateering, 
the  necessity  of  ships  arming  to  defend  them- 
selves was  diminished,  because  against  a  mod- 
ern cruiser  a  defensively  armed  merchantman 
would  be  almost  impotent.  But  at  the  Second 
Hague  Peace  Conference  a  convention  was 
adopted  providing  for  the  conversion  of  mer- 
chant vessels  into  war  ships  and  against  these 
a  defensively  armed  merchant  vessel  would 
have  the  same  chance  of  escape  that  it  formerly 
had  against  a  privateer  or  a  pirate.  A  reason 
for  the  armament  therefore  came  into  existence 
at  the  Second  Hague  Peace  Conference,  and  in 
March,  1913,  it  was  announced  that  British  mer- 
chant vessels  were  to  be  defensively  armed. 
That  this  was  perfectly  legal  was  recognized, 
as  I  have  said,  by  established  practice,  the 
United  States  Supreme  Court,  a  Hague  Con- 
vention, and  the  publicists  of  Great  Britain,  the 
United  States,  France,  Italy,  Belgium,  and 
Holland.  The  consensus  of  international  opin- 
ion was  in  its  favor,  as  correctly  stated  by  the 


ARMED  MERCHANTMEISr  157 

memorandum  of  the  United  States  in  reply  to 
the  German  protest. 

Furthermore,  in  1913,  the  Institute  of  Inter- 
national Law  at  its  Oxford  meeting  in  Article  12 
of  the  ''Manuel  des  Lois  de  la  Guerre  Mari- 
time'^  said  that  the  use  of  force  against  the 
attack  of  a  naval  enemy  was  permissible.  This 
view  was  combated  by  one  of  the  German  rep- 
resentatives but  was  adopted  by  a  large  ma- 
jority. Some  German  opinion,  however,  has 
been  opposed  to  the  rule,  but  as  a  leading 
authority  on  the  subject  points  out: 

''The  right  of  a  merchant  ship  to  defend  herself, 
and  to  be  armed  for  that  purpose,  has  not,  so  far 
as  I  am  aware,  been  doubted  for  two  centuries,  until 
the  question  has  again  become  one  of  practical  im- 
portance. The  historical  evidence  of  the  practice 
down  to  the  year  1815  is  overwhelming.  Dr.  Schramm 
[a  German  writer],  in  his  elaborate  denial  of  the 
right,  fails  to  distinguish  between  the  position  in 
which  a  belligerent  warship  stands  to  an  enemy  mer- 
chant ship,  and  that  in  which  it  stands  to  a  neutral 
merchant  ship.  This  failure  is  important,  and  goes 
to  the  root  of  the  matter,  for  whereas  the  visit  of  a 
belligerent  warship  to  an  enemy  merchant  ship  is, 
under  existing  law,  merely  the  first  step  to  capture 
and  is  itself  a  hostile  act,  and  is  undertaken  solely 


158    AMERICA'S  CASE  AGAINST  GERMANY 

in  order  to  enable  the  captor  to  ascertain  that  the 
ship  is  one  which  is  not  exempt  by  custom,  treaty  or 
convention  from  capture ;  the  visit  to  a  neutral  ship, 
though  justified  by  the  fact  of  the  existence  of  war, 
is  not  a  hostile  act.  By  long  custom  a  belligerent 
warship  has  a  right  of  visit  and  search  of  all  neutral 
merchant  vessels,  and  this  right  is  exercised  in  order 
to  ascertain  whether  a  vessel  is  in  fact  neutral,  and 
not  engaged  in  any  acts  such  as  attempting  to  break 
blockade,  the  carriage  of  contraband  or  the  perform- 
ance of  any  unneutral  service  which  would  justify 
its  detention  and  condemnation.  'It  has  been  truly 
denominated  a  right  growing  out  of,  and  ancillary  to 
the  greater  right  of  capture.  Where  this  greater 
right  may  be  legally  exercised  without  search  [as  in 
the  case  of  enemy  ships]  the  right  of  search  can  never 
arise  or  come  into  question.'  A  belligerent  warship 
has  a  right  to  capture  an  enemy  merchant  ship,  and 
the  latter  is  under  no  duty  to  submit;  it  has  a  cor- 
responding right  to  resist  capture,  which  is  an  act 
of  violence  and  hostility.  By  resisting,  the  belligerent 
violates  no  duty,  he  is  held  by  force  and  may  escape 
if  he  can.  But  forcible  resistance,  as  distinct  from 
flight,  on  the  part  of  a  neutral  merchant  ship  is  uni- 
versally admitted  as  a  just  ground  for  the  condem- 
nation of  the  ship. ' '  ^ 


International  Law,  Vol.  8,  p.  705.    The  quotation  is  from  Chief 
Justice  Marshall  in  the  Nereide,  9  Cranch,  338  (1815). 


AEMED  MERCHANTMEN  159 

In  addition,  the  crews  of  vessels  which  re- 
sist capture  become  prisoners  of  war;  the  re- 
sisting vessel,  according  to  the  Anglo-American 
doctrine,  can  make  a  lawful  prize  of  the  vessel 
which  attacks  it.  ^  ^  The  crew  of  a  merchant  ship 
is  a  body  of  men  acting  together  in  defense  of 
their  ship  and  their  liberty,  a  body  of  indi- 
viduals who  by  the  customary  law  of  nations 
have  received  combatant  privileges  when  resist- 
ing capture  by  an  enemy  warship.  They  offer 
a  striking  analogy  to  the  spontaneous  rising  of 
the  inhabitants  of  an  occupied  territory,  who 
have  now  received  by  convention  the  right 
which  merchant  sailors  have  had  for  cen- 
turies.'^ ^ 

Now  the  mere  fact  that  a  merchant  vessel 
may  resist  capture,  does  not,  of  course,  permit 
the  capturing  vessel  to  sink  it  without  warning. 
The  provisions  of  international  law  are  definite 
on  this  point.  If  resistance  takes  place,  suffi- 
cient force  can  be  used  to  overcome  this  resist- 
ance, but  to  the  merchant  vessel  is  given  the 
option  of  deciding  whether  it  will  submit  at 

'  Higgins,   op.   cit.,   and   Hague   Convention   (IV,    1907)  Ee- 
specting  the  Laws  and  Customs  of  War  on  Land. 


160    AMERICA'S  CASE  AGAINST  GERMANY 

once,  attempt  to  flee,  or  resist,  and  the  vessel 
desiring  to  make  the  capture  must  await  the 
exercise  of  this  option  before  it  uses  force. 
Passengers  on  a  defensively  armed  merchant 
vessel  are  protected  until  the  resistance  takes 
place ;  then  the  responsibility  is  on  the  captain 
of  the  merchant  vessel  if  the  exercise  of  force 
by  the  capturing  vessel,  conceding  that  this 
force  is  no  more  than  is  necessary  to  overcome 
the  resistance,  causes  injury  to  the  passengers. 
And  the  mere  fact  that  a  submarine  may  be 
sunk  by  one  shot  does  not  furnish  any  basis 
for  a  change  in  the  rule.  It  is  one  of  the  haz- 
ards of  submarine  activity  against  commerce 
that  resistance  may  be  immediately  and  com- 
pletely effective. 

With  Mr.  Lansing  ^s  reply  of  November  7, 
1914,  the  question  of  armed  merchantman 
rested  for  some  time.  In  the  communications 
over  the  war  zone  and  the  Lusitania,  Germany 
claimed  that  armed  merchantmen  could  not  be 
considered  undefended  territory,  and  that  she 
was,  therefore,  justified  in  sinking  them  with- 
out warning.  One  of  her  excuses  for  sinking 
the   Lusitania  was  that  the   ship   carried  an 


AEMED  MERCHANTMEN  161 

armament,  but  in  its  replies,  the  United  States 
did  not  attempt  to  controvert  this  view  of  the 
obligations  on  the  submarine,  but  contented  it- 
self with  pointing  out  that  the  Lusitania  was 
in  fact  unarmed. 

In  the  early  part  of  1916,  however,  the  whole 
question  was  raised  again.  Italian  and  British 
ships  were  armed  on  account  of  the  ruthless 
submarine  campaign  which  was  being  waged  in 
the  Mediterranean.  The  hint  was  given  that 
Germany  intended  to  sink  all  armed  merchant- 
men without  warning,  and  so  on  January  18, 
1916,  Secretary  of  State  Lansing  issued  a  truly 
remarkable  document  which  was  designed  to 
obviate  this  threat  to  the  lives  and  interests  of 
American  citizens  on  board  of  vessels  which 
might  carry  an  armament.  He  proposed  that 
the  practice  of  arming  merchant  vessels  be  abol- 
ished, and  while  he  had  himself  signed  the  note 
of  November  7th  which  upheld  the  right  of  a 
merchantman  to  resist  capture,  he  now  declared 
that  **an  enemy  merchant  vessel  when  ordered 
to  do  so  by  a  belligerent  submarine  should  im- 
mediately stop. ' '  The  memorandum  concluded 
with  this  statement: 


162    AMERICA'S  CASE  AGAINST  GERMANY 

"I  should  add  that  my  Government  is  impressed 
with  the  reasonableness  of  the  argument  that  a  mer- 
chant vessel  carrying  armament  of  any  sort,  in  view 
of  the  character  of  the  submarine  warfare  and  the 
defensive  weakness  of  underseas  craft,  should  be  held 
to  be  an  auxiliary  cruiser  and  so  treated  by  a  neutral 
as  well  as  by  a  belligerent  Government,  and  is  seri- 
Dusly  considering  instructing  its  officials  accordingly. ' ' 

Now,  this  proposal  was  of  course  unanimously 
declined  by  the  Entente  Allies.  Figures  an- 
nounced mucli  later  by  the  British  Admiralty 
showed  that  more  than  seventy-five  per  cent,  of 
all  armed  vessels  escaped  destruction  by  subma- 
rines, while  of  the  unarmed  ones  only  twenty- 
four  per  cent,  escaped  when  attacked.  The 
acceptance  of  Mr.  Lansing's  suggestion  would 
have  meant  that  the  Entente  Powers  volun- 
tarily permit  a  much  larger  proportion  of  their 
shipping  to  be  sunk,  with  the  saving  of  more 
lives  perhaps,  but  with  license  on  the  part  of 
Germany  to  plead  in  any  case  that  destruction 
without  warning  was  justified  because  of  the 
presence  of  a  gun  or  a  threatened  attack.  The 
effectiveness  of  submarines  against  commerce 
— a  use  which  had  been  objected  to  by  the 


ARMED  MEECHANTMEN"  163 

United  States  in  its  early  Lusitania  exchanges 
• — ^would  be  immeasurably  increased. 

Germany,  however,  took  advantage  of  the 
proposals  thus  made  by  Secretary  Lansing, 
and  on  February  11,  1916,  announced  that  after 
March  1st  all  armed  merchantmen  would  be 
sunk  without  warning.  The  diplomatic  position 
of  the  United  States  had  been  weakened  and 
discussion  of  the  matter  began  in  Congress 
where  a  resolution  was  introduced  warning 
Americans  to  keep  off  armed  merchant  ships 
of  belligerent  nationality.  With  apparently  a 
majority  in  each  House  favoring  its  passage, 
the  Administration  interfered.  Secretary  Lan- 
sing's note  had  been  merely  a  proposal  for  a 
modus  Vivendi  like  the  suggestions  made  to 
England  and  Germany  in  the  early  days  of  the 
war  zone;  when  rejected  by  one  group  of  bel- 
ligerents, it  could  not  be  put  into  operation  by 
the  other  group  nor  could  any  advantage  be  de- 
rived from  its  having  been  made.  President 
Wilson  wrote  (February  24th)  Senator  Stone 
that  the  duty  of  the  country  was  clear : 

"No  nation,  no  group  of  nations,  has  the  right 
whUe  war  is  in  progress  to  alter  or  disregard  the 


164    AMERICA'S  CASE  AGAINST  GERMANY 

principles  which  all  nations  have  agreed  upon  in  miti- 
gation of  the  horrors  and  sufferings  of  war,  and  if 
the  clear  rights  of  American  citizens  should  ever  un- 
happily be  abridged  or  denied  by  any  such  action 
we  should,  it  seems  to  me,  have  in  honor  no  choice  as 
to  what  our  own  course  should  be. 

**For  my  own  part,  I  cannot  consent  to  any 
abridgement  of  the  rights  of  American  citizens  in 
any  respect.  The  honor  and  self-respect  of  the  nation 
are  involved.  We  covet  peace  and  shall  preserve  it 
at  any  cost  but  the  loss  of  honor.  To  forbid  our 
people  to  exercise  their  rights  for  fear  we  might  be 
called  upon  to  vindicate  them  would  be  a  deep  hu- 
miliation indeed.  It  would  be  an  implicit,  all  but  an 
explicit,  acquiescence  in  the  violation  of  the  rights 
of  mankind  everywhere  and  of  whatever  nation  or 
allegiance.  It  would  be  a  deliberate  abdication  of  our 
hitherto  proud  position  as  spokesmen,  even  amidst 
the  turmoil  of  war,  for  the  law  and  the  right.  It 
would  make  everything  this  Government  has  at- 
tempted and  everything  that  it  has  achieved  during 
this  terrible  struggle  of  nations  meaningless  and 
futile. 

"It  is  important  to  reflect  that  if  in  this  instance 
we  allowed  expediency  to  take  the  place  of  principle, 
the  door  would  inevitably  be  opened  to  still  further 
concessions.  Once  accept  a  single  abatement  of  right 
and  many  other  humiliations  would  certainly  follow, 
and  the  whole  fine  fabric  of  international  law  might 


ARMED  MERCHANTMEN  165 

crumble  under  our  hands  piece  by  piece.  What  we 
are  contending  for  in  this  matter  is  of  the  very  es- 
sence of  the  things  that  have  made  America  a  sov- 
ereign nation.  She  cannot  yield  them  without  conced- 
ing her  own  impotency  as  a  nation  and  making 
virtual  surrender  of  her  independent  position  among 
the  nations  of  the  world.'' 

This  letter  had  its  effect  and  the  resolution  was 
tabled. 

Meanwhile  there  was  much  uncertainty,  as 
the  position  of  the  Administration  was  not  defi- 
nitely announced  until  April  26th,  when  there 
was  published  a  memorandum  dated  March  25th 
which  set  forth  in  a  comprehensive  fashion  the 
views  of  the  United  States  as  to  armed  mer- 
chantmen. Following  are  the  pertinent  para- 
graphs with  reference  to  the  duties  of  a  bel- 
ligerent cruiser  or  submarine  upon  overtaking 
a  defensively  armed  vessel: 

"(7)  When  a  belligerent  warship  meets  a  mer- 
chantman on  the  high  seas,  which  is  known  to  be 
enemy  owned,  and  attempts  to  capture  the  vessel, 
the  latter  may  exercise  its  right  of  self-protection 
either  by  flight  or  by  resistance.  The  right  to  capture 
and  the  right  to  prevent  capture  are  recognized  as 
equally  justifiable. 


166    AMERICA'S  CASE  AGAINST  GERMANY 

**(8)  The  exercise  of  the  right  of  capture  is  lim- 
ited, nevertheless,  by  certain  accepted  rules  of  con- 
duct based  on  the  principles  of  humanity  and  regard 
for  innocent  property,  even  if  there  is  definite  knowl- 
edge that  some  of  the  property,  cargo,  as  well  as  the 
vessel,  is  of  enemy  character.  As  a  consequence  of 
these  limitations,  it  has  become  the  established  prac- 
tice for  warships  to  give  merchant  vessels  an  oppor- 
tunity to  surrender  or  submit  to  visit  and  search  be- 
fore attempting  to  seize  them  by  force.  The  observ- 
ance of  this  rule  of  naval  warfare  tends  to  prevent 
the  loss  of  life  of  noncombatants  and  the  destruc- 
tion of  innocent  neutral  property,  which  would  result 
from  sudden  attack. 

*'  (9)  If,  however,  before  a  summons  to  surrender 
is  given,  a  merchantman  of  belligerent  nationality, 
aware  of  the  approach  of  an  enemy  warship,  uses  its 
armament  to  keep  the  enemy  at  a  distance,  or  after 
it  has  been  summoned  to  surrender  it  resists  or  flees, 
the  warship  may  properly  exercise  force  to  compel 
surrender. 

^'(10)  If  the  merchantman  finally  surrenders,  the 
belligerent  warship  may  release  it  or  take  it  into  cus- 
tody. In  the  case  of  an  enemy  merchantman  it  may 
be  sunk,  but  only  if  it  is  impossible  to  take  it  into 
port,  and  provided  always  that  the  persons  on  board 
are  put  in  a  place  of  safety.  In  the  case  of  neutral 
merchantman,  the  right  to  sink  it  in  any  circumstance 
is  doubtful. 


ARMED  MERCHANTMEN  167 

*'  (11)  A  merchantman  entitled  to  exercise  the  right 
of  self-protection  may  do  so  when  certain  of  attack 
by  an  enemy  warship,  otherwise  the  exercise  of  the 
right  would  be  so  restricted  as  to  render  it  ineffectual. 
There  is  a  distinct  difference,  however,  between  the 
exercise  of  the  right  of  self-protection  and  the  act 
of  cruising  the  seas  in  an  armed  vessel  for  the  pur- 
pose of  attacking  enemy  naval  vessels. 

*'(12)  In  the  event  that  merchant  ships  of  bel- 
ligerent nationality  are  armed  and  under  commission 
or  orders  to  attack  in  all  circumstances  certain  classes 
of  enemy  naval  vessels  for  the  purpose  of  destroying 
them,  and  are  entitled  to  receive  prize  money  for 
such  service  from  their  Government,  or  are  liable  to 
a  penalty  for  failure  to  obey  the  orders  given,  such 
merchant  ships  lose  their  status  as  peaceable  merchant 
ships  and  are  to  a  limited  extent  incorporated  in  the 
naval  forces  of  their  Government,  even  though  it  is 
not  their  sole  occupation  to  conduct  hostile  opera- 
tions. 

'*  (13)  A  vessel  engaged  intermittently  in  commerce 
and  under  a  commission  or  orders  of  its  Government 
imposing  a  penalty,  in  pursuing  and  attacking  enemy 
naval  craft,  possesses  a  status  tainted  with  a  hostile 
purpose  which  it  can  not  throw  aside  or  assume  at 
will.  It  should,  therefore,  be  considered  as  an  armed 
public  vessel  and  receive  the  treatment  of  a  warship 
by  an  enemy  and  by  neutrals.  Any  person  taking 
passage  on  such  a  vessel  can  not  expect  immunity 


168    AMERICA'S  CASE  AGAINST  GERMANY 

other  than  that  accorded  persons  who  are  on  board  a 
warship.  A  private  vessel,  engaged  in  seeking  enemy 
naval  craft,  without  such  a  commission  or  orders 
from  its  Government,  stands  in  a  relation  to  the  enemy 
similar  to  that  of  a  civilian  who  fires  upon  the  or- 
ganized military  forces  of  a  belligerent,  and  is  entitled 
to  no  more  considerable  treatment. ' ' 

These  are  so  clear  that  further  comment  of 
mine  is  useless,  and  in  concluding  this  brief 
treatment  of  the  attitude  of  the  United  States 
on  the  subject  of  armed  merchantmen,  only  one 
consideration  need  be  stressed.  Nothing  has 
been  said  here  about  the  German  claim  that 
British  merchant  vessels  were  armed  for  of- 
fense against  submarines.  If  true,  the  situation 
would  be  altered,  but  in  no  case  has  Germany 
been  able  to  relieve  herself  of  liability  to  the 
United  States  on  the  basis  of  her  plea  that  a 
defensively  armed  vessel  is  not  undefended  ter- 
ritory. She  has,  to  be  sure,  claimed,  as  she  did 
in  the  Lusitania  case,  that  the  ship  sunk  carried 
a  gun,  but  the  United  States  has  had  no  diffi- 
culty in  traversing  these  contentions.  The  Ger- 
man decree  of  January  31,  1917,  furthermore, 
does  not  confine  the  operations  of  submarines 


ARMED  MERCHANTMEN  169 

to  armed  vessels  and  thus  Americans  case 
against  Germany  is  firmly  established  without 
the  necessity  of  rebutting  the  German  plea  that 
an  armed  vessel  can  be  sunk  without  warning. 


CHAPTEE   IX 

THE 

RENEWED 

German  submarine  activities  against  ship- 
ping began  on  March  1st,  the  day  the  new  cam- 
paign was  to  go  into  effect,  but  the  sinkings 
were  indiscriminate  and  were  not  confined  to 
merchantmen  that  carried  armament.  Thus 
the  status  of  armed  merchant  vessels  was  not 
introduced  to  embarrass  the  United  States  or 
to  excuse  Germany.  The  unarmed  French  liner 
Patria  from  Naples  to  New  York  was  attacked 
by  a  submarine  north  of  Tunis  but  was  able  to 
escape.  The  Norwegian  bark  Silius  while  lying 
at  anchor  in  Havre  Roads  was  torpedoed  with- 
out warning  on  March  9th  and  of  the  seven 
Americans  in  the  crew,  one  was  injured.  Of 
three  Americans  on  board  the  Dutch  liner 
Tuhantia  in  the  North  Sea  all  were  saved,  but 
during  this  same  period  Ambassador  Gerard 

170 


THE  "SUSSEX'^  PLEDGES  171 

was  requested  to  obtain  prompt  reports  from 
the  Imperial  German  Government  as  to  their 
responsibility  for  the  sinking  of  the  English- 
man, the  Manchester  Engineer,  the  Eagle  Point, 
and  the  Berwindale,  all  of  which  had  Americans 
on  board.  But  the  crowning  outrage  came  on 
March  24th  when  the  channel  steamer  Sussex, 
an  unarmed  passenger  boat,  was  sunk  without 
warning.  Several  Americans  were  among  the 
passengers  who  were  killed  or  injured. 

The  reply  to  Mr.  Gerard's  inquiry  as  to 
whether  German  submarines  were  responsible 
— that  they  were  was  indisputable  from  the  fact 
that  in  several  instances  periscopes  or  the 
underseas  boats  themselves  had  been  visible — 
was  dated  April  10th.  It  first  considered  the 
four  minor  cases  concerning  which  inquiry  had 
been  made.  The  Berwindale,  the  Englishman, 
and  the  Eagle  Point  had  all  tried  to  escape  and 
had  been  shelled  in  order  to  compel  surrender. 
Time  was  afforded  for  the  crews  to  leave  be- 
fore the  sinkings  were  effected.  In  the  case  of 
the  Manchester  Engineer,  the  investigation  had 
not  been  concluded.  As  for  the  Sussex,  Ger- 
many attempted  to  make  the  extraordinary  plea 


172    AMERICA'S  CASE  AGAINST  GERMANY 

that  her  submarines  had  not  been  responsible 
for  this  outrage. 

In  the  locality  in  which  the  Sussex  sank,  it 
was  explained,  a  German  submarine  commander 
encountered  what  seemed  to  him  to  be  a  war 
vessel.  *  ^  He  was  led  to  this  conviction,  one,  by 
the  flush  of  the  vessel ;  two,  by  the  warship  form 
of  stern,  protruding  diagonally  backward  and 
then  falling  downward;  three,  by  the  warship- 
like coat  of  paint;  four,  by  the  high  speed  of 
about  eighteen  sea  miles  developed  by  the  ves- 
sel; five,  by  the  circumstances  that  the  vessel 
did  not  follow^'  the  naval  course  for  merchant 
shipping, ' '  but  sailed  in  the  middle  of  the  chan- 
nel, pointing  about  for  Havre.  ^*  The  vessel 
was  torpedoed  and  a  severe  explosion  tore  loose 
the  whole  f oreship  up  to  the  bridge.  This  war- 
ranted ^^the  safe  conclusion  that  there  were 
large  quantities  of  ammunition  on  board."  To 
the  note  were  attached  sketches  made  by  the 
submarine  commander  of  the  vessel  he  sank  at 
this  time,  and  a  sketch  of  the  Sussex  taken  from 
the  London  Daily  Graphic.  A  comparison  of 
the  pictures  would  show  that  the  two  vessels 
were  not  identical.    Under  these  circumstances, 


THE  "SUSSEX"  PLEDGES  173 

*Hhe  German  Government  is  forced  to  assume 
that  the  damaging  of  the  Sussex  is  to  be  attrib- 
uted to  another  cause  than  the  attack  of  a  Ger- 
man submarine.'^  It  was  suggested  that  an 
English  mine  might  have  been  responsible, 
since,  it  was  claimed,  twenty-six  of  them  were 
exploded  by  German  naval  forces  in  the  Channel 
on  April  1st  and  2nd.  Finally,  Germany  de- 
clared ^'its  readiness  to  permit  the  facts  to  be 
ascertained  by  a  mixed  commission  of  investi- 
gation, pursuant  to"  the  Hague  Convention  for 
the  Pacific  Settlement  of  International  Dis- 
putes. 

President  Wilson's  reply,  on  April  18th,  was 
the  sharpest  yet  sent  to  Germany,  and  the 
threat  that  diplomatic  relations  would  be  sev- 
ered, coupled  with  his  appearance  before  Con- 
gress, so  convinced  Germany  of  the  seriousness 
of  his  purpose  that  she  pledged  herself  not  to 
sink  vessels  within  or  without  the  war  zone 
^'without  warning  and  without  saving  human 
lives  unless  the  ship  attempts  to  escape  or  offer 
resistance."  The  note  (the  address  to  Con- 
gress was  largely  in  the  same  language)  with 
elaborate  appendices  giving  the  evidence  avail- 


174    AMERICA'S  CASE  AGAINST  GERMANY 

able,  showed  it  to  be  indisputable  that  a  sub- 
marine had  sunk  the  Sussex,  If  it  had  been  an 
isolated  case,  '^the  Government  of  the  United 
States  might  find  it  possible  to  hope  that  the 
officer  who  was  responsible  for  that  act  had 
willfully  violated  his  orders  or  had  been  crim- 
inally negligent  in  taking  none  of  the  precau- 
tions they  prescribed,  and  that  the  ends  of  jus- 
tice might  be  satisfied  by  imposing  upon  him 
an  adequate  punishment,  coupled  with  a  formal 
disavowal  of  the  act  and  payment  of  a  suitable 
indemnity  by  the  Imperial  Government.  But, 
though  the  attack  upon  the  Sussex  was  mani- 
festly indefensible  and  caused  a  loss  of  life  so 
tragical  as  to  make  it  stand  forth  as  one  of  the 
most  terrible  examples  of  the  inhumanity  of 
submarine  warfare  as  the  commanders  of  Ger- 
man vessels  are  conducting  it,  it  unhappily  does 
not  stand  alone. 

*^0n  the  contrary,  the  Government  of  the 
United  States  is  forced  by  recent  events  to  con- 
clude that  it  is  only  one  instance,  even  though 
one  of  the  most  extreme  and  most  distressing 
instances,  of  the  deliberate  method  and  spirit 
of  indiscriminate  destruction  of  merchant  ves- 


THE  ^^SUSSEX^^  PLEDGES  175 

sels  of  all  sorts,  nationalities,  and  destinations 
which  have  become  more  and  more  unmistak- 
able as  the  activity  of  German  undersea  vessels 
of  war  has  in  recent  months  been  quickened  and 
extended." 

The  President  then  reviewed  his  course  since 
Germany  announced  her  intention  in  February, 
1915.  The  United  States  had  taken  the  position 
that  such  a  measure  "could  not  be  pursued 
without  constant  gross  and  palpable  violations 
of  the  accepted  law  of  nations ' '  which  was  ^ '  not 
of  recent  origin  or  founded  upon  merely  arbi- 
trary principles  set  up  by  convention,"  but  was 
"based,  on  the  contrary,  upon  manifest  prin- 
ciples of  humanity  and  has  long  been  estab- 
lished with  the  approval  and  by  the  express 
assent  of  all  civilized  nations."  The  Imperial 
Government  declined  to  abandon  this  policy  and 
promised  that  the  danger  to  neutrals  would  be 
reduced  to  a  minimum  by  the  instructions  is- 
sued submarine  commanders,  but  this  result  did 
not  take  place. 

"Again  and  again  the  Imperial  Government  has 
given  its  solemn  assurances  to  the  Government  of 
the  United  States  that  at  least  passenger  ships  would 


176    AMERICA'S  CASE  AGAINST  GERMANY 

not  be  thus  dealt  with,  and  yet  it  has  repeatedly  per- 
mitted its  undersea  commanders  to  disregard  those 
assurances  with  entire  impunity.  As  recently  as  Feb- 
ruary last  it  gave  notice  that  it  would  regard  all 
armed  merchantmen  owned  by  its  enemies  as  part  of 
the  armed  naval  forces  of  its  adversaries  and  deal 
with  them  as  with  men-of-war,  thus,  at  least  by  im- 
plication, pledging  itself  to  give  warning  to  vessels 
which  were  not  armed  and  to  accord  security  of  life 
to  their  passengers  and  crews;  but  even  this  limita- 
tion their  submarine  commanders  have  recklessly  ig- 
nored. 

* '  Vessels  of  neutral  ownership,  even  vessels  of  neu- 
tral ownership  bound  from  neutral  port  to  neutral 
port,  have  been  destroyed,  along  with  vessels  of 
belligerent  ownership,  in  constantly  increasing  num- 
bers. Sometimes  the  merchantmen  attacked  have  been 
warned  and  summoned  to  surrender  before  being  fired 
on  or  torpedoed;  sometimes  their  passengers  and 
crews  have  been  vouchsafed  the  poor  security  of  being 
allowed  to  take  the  ship's  boats  before  the  ship  was 
sent  to  the  bottom.  But  again  and  again  no  warning 
has  been  given,  no  escape  even  to  the  ship's  boats 
allowed  to  those  on  board.  Great  liners  like  the 
Lusitania  and  Arabic,  and  mere  passenger  boats  like 
the  Sussex,  have  been  attacked  without  a  moment's 
warning,  often  before  they  have  even  become  aware 
that  they  were  in  the  presence  of  an  armed  ship  of 
the  enemy,  and  the  lives  of  noncombatants,  passengers. 


THE  "SUSSEX'^  PLEDGES  177 

and  crew,  have  been  destroyed  wholesale  and  in  a 
manner  which  the  Government  of  the  United  States 
cannot  but  regard  as  wanton  and  without  the  slightest 
color  of  justification.  No  limit  of  any  kind  has,  in 
fact,  been  set  to  their  indiscriminate  pursuit  and 
destruction  of  merchantmen  of  all  kinds  and  nation- 
alities within  the  waters  which  the  Imperial  Govern- 
ment has  chosen  to  designate  as  lying  within  the  seat 
of  war.  The  roll  of  Americans  who  have  lost  their 
lives  upon  ships  thus  attacked  and  destroyed  has 
grown  month  by  month  until  the  ominous  toll  has 
mounted  into  the  hundreds.^ 

''The  Government  of  the  United  States  has  been 

*  In  his  address  to  Congress  President  Wilson  referred  par- 
ticularly to  the  Sussex  as  follows: 

"One  of  the  latest  and  most  shocking  instances  of  this 
method  of  warfare  was  that  of  the  destruction  of  the  French 
cross-channel  steamer  Sussex.  It  must  stand  forth,  as  the  sink- 
ing of  the  steamer  Lusitania  did,  as  so  singularly  tragical  and 
unjustifiable  as  to  constitute  a  truly  terrible  example  of  the 
inhumanity  of  submarine  warfare  as  the  commanders  of  Ger- 
man vessels  have  for  the  past  12  months  been  conducting  it. 
If  this  instance  stood  alone,  some  explanation,  some  disavowal 
by  the  German  Government,  some  evidence  of  criminal  mistake 
or  willful  disobedience  on  the  part  of  the  commander  of  the 
vessel  that  fired  the  torpedo,  might  be  sought  or  entertained, 
but  unhappily  it  does  not  stand  alone.  Eecent  events  make  the 
conclusion  inevitable  that  it  is  only  one  instance,  even  though 
it  be  one  of  the  most  extreme  and  distressing  instances,  of  the 
spirit  and  method  of  warfare  which  the  Imperial  German  Gov- 
ernment has  mistakenly  adopted  and  which  from  the  first  ex- 
posed that  Government  to  the  reproach  of  thrusting  all  neutral 
rights  aside  in  pursuit  of  its  immediate  objects.'' 


178    AMERICA'S  CASE  AGAINST  GERMANY 

very  patient.  At  every  stage  of  this  distressing  ex- 
perience of  tragedy  after  tragedy  it  has  sought  to  be 
governed  by  the  most  thoughtful  consideration  of  the 
extraordinary  circumstances  of  an  unprecedented  war 
and  to  be  guided  by  sentiments  of  very  genuine 
friendship  for  the  people  and  Government  of  Ger- 
many. It  has  accepted  the  successive  explanations 
and  assurances  of  the  Imperial  Government  as,  of 
course,  given  in  entire  sincerity  and  good  faith,  and 
has  hoped,  even  against  hope,  that  it  would  prove 
to  be  possible  for  the  Imperial  Government  so  to 
order  and  control  the  acts  of  its  naval  commanders 
as  to  square  its  policy  with  the  recognized  principles 
of  humanity  as  embodied  in  the  law  of  nations.  It 
has  made  every  allowance  for  unprecedented  condi- 
tions and  has  been  willing  to  wait  until  the  facts 
became  unmistakable  and  were  susceptible  of  only  one 
interpretation. 

*'It  now  owes  it  to  a  just  regard  for  its  own  rights 
to  say  to  the  Imperial  Government  that  that  time  has 
come.  It  has  become  painfully  evident  to  it  that  the 
position  which  it  took  at  the  very  outset  is  inevitable, 
namely,  the  use  of  submarines  for  the  destruction  of 
an  enemy's  commerce,  is,  of  necessity,  because  of  the 
very  character  of  the  vessels  employed  and  the  very 
methods  of  attack  which  their  employment  of  course 
involves,  utterly  incompatible  with  the  principles  of 
humanity,  the  long-established   and  incontrovertible 


THE  "SUSSEX"  PLEDGES  179 

rights  of  neutrals,  and  the  sacred  immunities  of  non- 
combatants. 

*'If  it  is  still  the  purpose  of  the  Imperial  Govern- 
ment to  prosecute  relentless  and  indiscriminate  war- 
fare against  vessels  of  commerce  by  the  use  of  sub- 
marines, without  regard  to  what  the  Government  of 
the  United  States  must  consider  the  sacred  and  indis- 
putable rules  of  international  law  and  the  universally 
recognized  dictates  of  humanity,  the  Government  of 
the  United  States  is  at  last  forced  to  the  conclusion 
that  there  is  but  one  course  it  can  pursue:  Unless 
the  Imperial  Government  should  now  immediately  de- 
clare and  effect  an  abandonment  of  its  present  meth- 
ods of  submarine  warfare  against  passenger  and 
freight-carrying  vessels,  the  Government  of  the  United 
States  can  have  no  choice  but  to  sever  diplomatic 
relations  with  the  German  Empire  altogether.  This 
action  the  Government  of  the  United  States  contem- 
plates with  the  greatest  reluctance,  but  feels  con- 
strained to  take  in  behalf  of  humanity  and  the  rights 
of  neutral  nations."^ 

'The  concluding  paragraphs  of  the  President's  address  to 
Congress  were  as  follows: 

' '  I  have  deemed  it  my  duty,  therefore,  to  say  to  the  Imperial 
German  Government  that  if  it  is  still  its  purpose  to  prosecute 
relentless  and  indiscriminate  warfare  against  vessels  of  com- 
merce by  the  use  of  submarines,  notwithstanding  the  now  dem- 
onstrated impossibility  of  conducting  that  warfare  in  accord- 
ance with  what  the  Government  of  the  United  States  must  con- 
sider the  sacred  and  indisputable  rules  of  international  law  and 
the  universally  recognized  dictates  of  humanity,  the  Government 


180    AMERICA'S  CASE  AGAINST  GERMANY 

Here,  it  should  be  noticed,  President  Wilson 
reverted  to  the  position  of  his  first  Lusitania 
note  that  submarines  could  not  be  used  against 
commerce  without  a  disregard  of  the  sacred 
immunities  of  noncombatants,  and,  more  than 
that,  he  asserted  the  inevitability  of  a  break 
with  Germany,  not  simply  on  account  of  the 

of  the  United  States  is  at  last  forced  to  the  conclusion  that 
there  is  but  one  course  it  can  pursue,  and  that  unless  the  Im- 
perial German  Government  should  now  immediately  declare  and 
effect  an  abandonment  of  its  present  methods  of  warfare 
against  passenger  and  freight  carrying  vessels  this  Government 
can  have  no  choice  but  to  sever  diplomatic  relations  with  the 
Government  of  the  German  Empire  altogether. 

''This  decision  I  have  arrived  at  with  the  keenest  regret;  the 
possibility  of  the  action  contemplated  I  am  sure  all  thoughtful 
Americans  will  look  forward  to  with  unaffected  reluctance.  But 
we  can  not  forget  that  we  are  in  some  sort  and  by  the  force 
of  circumstances  the  responsible  spokesmen  of  the  rights  of 
humanity,  and  that  we  can  not  remain  silent  while  those  rights 
seem  in  process  of  being  swept  utterly  away  in  the  maelstrom 
of  this  terrible  war.  We  owe  it  to  a  due  regard  for  our  own 
rights  as  a  Nation,  to  our  sense  of  duty  as  a  representative  of 
the  rights  of  neutrals  the  world  over,  and  to  a  just  conception 
of  the  rights  of  mankind  to  take  this  stand  now  with  the  utmost 
solemnity  and  firmness. 

"I  have  taken  it,  and  taken  it  in  the  confidence  that  it  will 
meet  with  your  approval  and  support.  All  sober-minded  men 
must  unite  in  hoping  that  the  Imperial  German  Government, 
which  has  in  other  circumstances  stood  as  the  champion  of  all 
that  we  are  now  contending  for  in  the  interest  of  humanity, 
may  recognize  the  justice  of  our  demands  and  meet  them  in  the 
spirit  in  which  they  are  made.  *' 


THE  "SUSSEX''  PLEDGES  181 

loss  of  American  citizens  but  because  the  meth- 
ods of  attack  were  ^ '  incompatible  with  the  prin- 
ciples of  humanity  ^^  and  the  rights  of  neutrals. 
But  the  objection  to  the  use  of  submarines  at 
all  is  apart  from  the  main  contention  that  the 
passengers  and  crew  must  be  saved  before  a 
vessel  may  be  sunk  and  Germany's  agreement 
satisfied  the  demands  of  the  United  States. 

The  German  reply,  delivered  on  May  4th,  ad- 
mitted the  possibility  that  the  ship  torpedoed 
was  the  Sussex  but  repudiated  the  assertion 
of  the  United  States  that  the  incident  was  *'but 
one  instance  of  a  deliberate  method  of  indis- 
criminate destruction  of  vessels  of  all  sorts, 
nationalities,  and  destinations  by  German  sub- 
marine commanders. ' '  Since  the  United  States 
had  omitted  to  refer  to  concrete  facts,  it  was 
of  little  avail  to  enter  upon  details.  Germany, 
the  note  claimed,  ^'had  imposed  far-reaching* 
restraints  upon  the  use  of  the  submarine  weap- 
on, solely  in  consideration  of  neutrals'  interests, 
in  spite  of  the  fact  that  these  restrictions  are 
necessarily  of  advantage  to  Germany's  ene- 
mies. No  such  consideration  has  ever  been 
shown   neutrals    by    Great    Britain    and   her 


182    AMEEICA'S  CASE  AGAINST  GEEMANY 

Allies.'*  German  submarine  conmianders  have 
had  orders  to  act  in  accordance  with  the  prin- 
ciples of  visit  and  search,  the  sole  exception  be- 
ing warfare  against  enemy  trade  carried  on  in 
enemy  vessels  in  the  war  zone.  No  assurances 
as  to  this  have  ever  been  given  the  United 
States.  These  orders  are  executed  in  good  faith 
but  errors  can  not  be  prevented;  and  even  in 
cases  where  only  cruiser  warfare  is  resorted 
to,  neutral  persons  and  property  come  to  grief. 
Germany  had  made  proposals  ^  to  the  United 
States  to  reduce  to  a  minimum  the  dangers  of 
naval  warfare,  but  these  had  not  been  accepted. 
Germany  was  still  ready  to  come  to  an  agree- 
ment along  these  lines,  and  after  professing  a 
desire  to  confine  warfare  on  sea  and  land  to 
the  armed  forces  of  the  belligerents,  the  note 
continued : 

*  *  In  self-defense  against  the  illegal  conduct  of  Brit- 
ish warfare,  while  fighting  a  bitter  struggle  for  na- 
tional existence,  Germany  had  to  resort  to  the  hard 
but  effective  weapon  of  submarine  warfare. 

'That  merchant  ships  should  not  be  armed,  that  the  United 
States  should  compel  Great  Britain  to  relax  her  restrictions 
upon  Germany's  trade,  and  that  an  embargo  should  be  placed 
upon  the  exports  of  arms  to  the  Allies.     See  above,  p.  33ff. 


THE  "SUSSEX"  PLEDGES  183 

* '  As  matters  stand,  the  German  Government  cannot 
but  reiterate  its  regret  that  the  sentiments  of  human- 
ity which  the  Government  of  the  United  States  ex- 
tends with  such  fervor  to  the  unhappy  victims  of  sub- 
marine warfare,  are  not  extended  with  the  same 
warmth  of  feeling  to  many  millions  of  women  and 
children  who,  according  to  the  avowed  intention  of 
the  British  Government,  shall  be  starved,  and  who  by 
sufferings  shall  force  the  victorious  armies  of  the  Cen- 
tral Powers  into  ignominious  capitulation. 

''The  German  Government,  in  agreement  with  the 
German  people,  fails  to  understand  this  discrimina- 
tion, all  the  more  as  it  has  repeatedly  and  explicitly 
declared  itself  ready  to  use  the  submarine  weapon  in 
strict  conformity  with  the  rules  of  international  law 
as  recognized  before  the  outbreak  of  the  war,  if 
Great  Britain  likewise  was  ready  to  adapt  the  con- 
duct of  warfare  to  these  rules. 

' '  Several  attempts  made  by  the  Government  of  the 
United  States  to  prevail  upon  the  British  Govern- 
ment to  act  accordingly  failed  because  of  flat  refusal 
on  the  part  of  the  British  Government.  Moreover, 
Great  Britain  again  and  again  has  violated  interna- 
tional law,  surpassing  all  bounds  in  outraging  neutral 
rights.  .  .  . 

*'The  German  people  knows  that  the  Government 
of  the  United  States  has  the  power  to  confine  the  war 
to  armed  forces  of  the  belligerent  countries,  in  the 
interest  of  humanity  and  maintenance  of  international 


184    AMERICA'S  CASE  AGAINST  GERMANY 

law.  The  Government  of  the  United  States  would 
have  been  certain  of  attaining  this  end  had  it  been 
determined  to  insist,  against  Great  Britain,  on  the  in- 
controvertible rights  to  freedom  of  the  seas.  But,  as 
matters  stand,  the  German  people  is  under  the  im- 
pression that  the  Government  of  the  United  States, 
while  demanding  that  Germany,  struggling  for  exist- 
ence, shall  restrain  the  use  of  an  effective  weapon  and 
while  making  compliance  with  these  demands  a  con- 
dition for  maintenance  of  relations  with  Germany, 
confines  itself  to  protests  against  illegal  methods 
adopted  by  Germany's  enemies.  Moreover,  the  Ger- 
man people  knows  to  what  considerable  extent  its 
enemies  are  supplied  with  all  kinds  of  war  material 
from  the  United  States. 

*'It  will,  therefore,  be  understood  that  the  appeal 
made  by  the  Government  of  the  United  States  to  sen- 
timents of  humanity  and  principles  of  international 
law  can  not,  under  the  circumstances,  meet  the  same 
hearty  response  from  the  German  people  which  such 
an  appeal  otherwise  always  is  certain  to  find  here. 
If  the  German  Government,  nevertheless,  is  resolved 
to  go  to  the  utmost  limit  of  concessions,  it  has  been 
guided  not  alone  by  the  friendship  connecting  the  two 
great  nations  for  over  one  hundred  years,  but  also 
by  the  thought  of  the  great  doom  which  threatens  the 
entire  civilized  world  should  the  cruel  and  sanguinary 
war  be  extended  and  prolonged. 

' '  The  German  Government,  conscious  of  Germany 's 


THE  "SUSSEX'^  PLEDGES  185 

strength,  twice  within  the  last  few  months  announced 
before  the  world  its  readiness  to  make  peace  on  a  basis 
safeguarding  Germany's  vital  interests,  thus  indicat- 
ing that  it  is  not  Germany's  fault  if  peace  is  still 
withheld  from  the  nations  of  Europe.  The  German 
Government  feels  all  the  more  justified  in  declaring 
that  responsibility  could  not  be  borne  before  the 
forum  of  mankind  and  history  if  after  twenty-one 
months  of  the  war's  duration  the  submarine  ques- 
tion, under  discussion  between  the  German  Govern- 
ment and  the  Government  of  the  United  States,  were 
to  take  a  turn  seriously  threatening  maintenance  of 
peace  between  the  two  nations/' 

Germany  declared  that  she  wished  to  prevent 
such  an  occurrence,  and  that  for  the  duration  of 
the  war  she  was  prepared  to  confine  its  opera- 
tions to  the  fighting  forces  of  the  belligerents, 

**  thereby  also  insuring  the  freedom  of  the  seas,  a  prin- 
ciple upon  which  the  German  Government  believes, 
now  as  before,  that  it  is  in  agreement  with  the  Gov- 
ernment of  the  United  States. 

* '  The  German  Government,  guided  by  this  idea,  no- 
tifies the  Government  of  the  United  States  that  Ger- 
man naval  forces  have  received  the  following  order: 

'  *  *  In  accordance  with  the  general  principles  of  visit 
and  search  and  the  destruction  of  merchant  vessels, 
recognized  by  international  law,  such  vessels,  both 


186    AMERICA'S  CASE  AGAINST  GERMANY 

within  and  without  the  area  declared  a  naval  war 
zone,  shall  not  be  sunk  without  warning  and  without 
saving  human  lives  unless  the  ship  attempt  to  escape 
or  offer  resistance.' 

' '  But  neutrals  can  not  expect  that  Germany,  forced 
to  fight  for  existence,  shall,  for  the  sake  of  neutral 
interests,  restrict  the  use  of  an  effective  weapon,  if 
the  enemy  is  permitted  to  continue  to  apply  at  will 
methods  of  warfare  violating  rules  of  international 
law.  Such  a  demand  would  be  incompatible  with  the 
character  of  neutrality,  and  the  German  Government 
is  convinced  that  the  Government  of  the  United  States 
does  not  think  of  making  such  a  demand,  knowing 
that  the  Government  of  the  United  States  repeatedly 
declares  that  it  is  determined  to  restore  the  princi- 
ple of  freedom  of  the  seas,  from  whatever  quarter  it 
has  been  violated." 

The  pledge  thus  made  was  immediately  quali- 
fied by  the  ominous  statement  that  Germany  did 
^^not  doubt  that  the  Government  of  the  United 
States  will  now  demand  and  insist  that  the 
British  Government  shall  forthwith  observe  the 
rules  of  international  law  universally  recog- 
nized before  the  war,''  and  threatened  that 
''should  the  steps  taken  by  the  Government  of 
the  United  States  not  attain  the  object  it  de- 
sires to  have  the  laws   of  humanity  followed 


THE  "SUSSEX^'  PLEDGES  187 

by  all  belligerent  nations,  the  German  Govern- 
ment would  then  be  facing  a  new  situation  in 
which  it  must  reserve  to  itself  complete  liberty 
of  decision.'' 

President  Wilson  replied  by  accepting  the 
pledge  and  ignoring  the  qualification  that 
America's  case  against  Great  Britain  would 
have  to  be  successfully  pressed.    He  said : 

' '  The  Government  of  the  United  States  feels  it  nec- 
essary to  state  that  it  takes  it  for  panted  that  the 
Imperial  German  Government  does  not  intend  to 
imply  that  the  maintenance  of  its  newly  announced 
policy  is  in  any  way  contingent  upon  the  course  or 
result  of  diplomatic  negotiations  between  the  Govern- 
ment of  the  United  States  and  any  other  belligerent 
Government,  notwithstanding  the  fact  that  certain 
passages  in  the  Imperial  Government's  note  of  the 
4th  instant  might  appear  to  he  susceptible  of  that 
construction.  In  order,  however,  to  avoid  any  possi- 
ble misunderstanding,  the  Government  of  the  United 
States  notifies  the  Imperial  Government  that  it  can 
not  for  a  moment  entertain,  much  less  discuss,  a  sug- 
gestion that  respect  by  German  naval  authorities  for 
the  rights  of  citizens  of  the  United  States  upon  the 
high  seas  should  in  any  way  or  in  the  slightest  degree 
be  made  contingent  upon  the  conduct  of  any  other 
Government  affecting  the  right  of  neutrals  and  non- 


188    AMERICA'S  CASE  AGAINST  GERMANY 

combatants.  Responsibility  in  such  matters  is  single, 
not  joint;  absolute,  not  relative." 

The  exchanges  were  concluded  with  Ger- 
many's note  of  May  8th,  admitting  the  destnic- 
tion  of  the  Sussex  through  a  mistake  by  the 
submarine  commander  in  forming  a  too  hurried 
judgment  of  the  character  of  the  vessel.  He 
did  not,  therefore, 

"act  fully  in  accordance  with  the  strict  instruction 
which  called  upon  him  to  exercise  particular  care. 

''In  view  of  these  circumstances  the  German  Gov- 
ernment frankly  admits  that  the  assurance  given  to 
the  American  Government,  in  accordance  with  which 
passenger  vessels  were  not  to  be  attacked  without 
warning,  has  not  been  adhered  to  in  the  present  case. 
As  was  intimated  by  the  undersigned  in  the  note  of 
the  4th  instant,  the  German  Government  does  not 
hesitate  to  draw  from  this  resultant  consequences. 
It  therefore  expresses  to  the  American  Government 
its  sincere  regret  regarding  the  deplorable  incident 
and  declares  its  readiness  to  pay  an  adequate  indem- 
nity to  the  injured  American  citizens.  It  also  dis- 
approved of  the  conduct  of  the  commander,  who  has 
been  appropriately  punished."* 

*  But  no  information  has  ever  been  available  as  to  the  nature 
of  the  penalty  suffered  by  the  commander  in  this  case  or  in  that 
of  the  Ancona.  The  commander  of  the  submarine  which  sank 
the  Lusitania  was  decorated. 


CHAPTEE   X 

THE  PARTING  OF   THE  WAYS 

From  the  date  of  these  conditional  pledges 
to  the  decree  of  January  31,  1917,  there  oc- 
curred no  sinkings  which  were  deemed  by  the 
United  States  to  violate  the  promises  made,  al- 
though the  warfare  of  submarines  seemed  very 
far  from  being  conducted  with  a  regard  for 
noncombatant  lives,  whether  enemy  or  neutral. 
Two  vessels  under  charter  by  the  American 
Commission  for  Eelief  in  Belgium  were  among 
those  sunk,  and  on  May  8th  the  Wliite  Star 
liner  Cymric,  engaged  in  the  freight  service, 
was  torpedoed  without  warning,  five  being 
killed  and  many  wounded,  but  there  were  no 
Americans  on  board.  During  the  latter  part 
of  May  and  the  first  weeks  in  June,  submarine 
activities  seemed  to  abate  somewhat,  but  Ger- 
many issued  a  warning  that  a  neutral  vessel 
could  be  attacked,  if,  upon  being  commanded 

189 


190    AMERICA'S  CASE  AGAINST  GERMANY 

to  stop  by.  a  submarine,  it  refused  to  obey.  In 
the  Mediterranean,  the  campaign  was  more  suc- 
cessful than  in  the  war  zone,  and  in  both  re- 
gions during  August  and  September  subma- 
rines were  able  to  account  for  about  seventy- 
five  vessels,  some  of  them  neutral.  The  safety 
and  interests  of  American  citizens  were  not 
affected,  and  so,  from  the  purely  national  stand- 
point now  taken  by  the  United  States,  the  Ger- 
man pledges  had  been  kept.  In  October,  how- 
ever, there  were  sensational  but  not  illegal  de- 
velopments. 

A  German  submarine  (U-53)  of  the  largest 
type  appeared  on  October  7th  in  the  harbor  at 
Newport  and  lay  there  several  hours.  It  was, 
the  captain  said,  seventeen  days  out  of  Wil- 
helmshaven  and  had  sufficient  supplies  of  all 
kinds  for  a  three  months '  cruise.  The  incident 
was  a  noteworthy  one  for  the  U-53  was  the  first 
war  submarine  to  cross  the  Atlantic  without  a 
convoy,  and  that  a  war  engine  belonging  to  a 
European  belligerent  could  rise  silently  from 
the  sea  in  an  American  harbor  showed  more 
effectively  than  any  theoretical  argument 
could,  that  our  days  of  *' splendid  isolation^'  are 


THE  PARTING  OF  THE  WAYS  191 

over.  The  U-53  left  that  evening  and  the  next 
day  sank  five  vessels  at  distances  of  from  forty 
to  eighty  miles  from  the  mainland.  One  Dutch, 
one  Norwegian,  and  two  British  freighters  thus 
met  their  fate,  together  with  the  Stephano,  a 
British  passenger  liner  running  between  New 
York  and  Halifax.  The  American  steamer 
Kansan  was  stopped,  but  was  allowed  to  pro- 
ceed. No  lives  were  lost  as  warning  was  given 
in  each  case  and  those  on  board  the  vessels 
took  to  small  boats.  That  the  ^^poor  safety '' 
thus  accorded  did  not  result  in  some  casualties 
is  due  to  the  fact  that  seventeen  American  tor- 
pedo boat  destroyers  were  sent  out  and  helped 
to  bring  in  the  passengers  and  crew. 

Now,  although  in  those  cases  warning  was 
given  before  the  vessels  were  sunk,  but  for  the 
services  of  the  American  torpedo  boat  destroy- 
ers some  of  the  passengers  of  the  Stephano 
would  doubtless  have  been  drowned  or  injured 
since  the  vessel  was  forty-two  miles  from  land 
when  sunk.  Nevertheless  the  United  States 
considered  that  its  neutral  rights  had  not  been 
infringed  and  apparently  made  no  protest. 
Furthermore,  on  August  31st  the  United  States 


192    AMERICA'S  CASE  AGAINST  GERMANY 

had  declined  to  accept  the  proposals  of  a  mem- 
orandum from  the  French  Government  in  which 
it  was  urged  that  the  difficulty  in  determining 
the  nationality  of  a  submarine  and  its  com- 
batant character,  and  the  likelihood  that,  if  far 
from  base  it  would  be  able  to  secure  supplies 
surreptitiously,  should  exclude  undersea  boats 
from  the  benefits  of  the  rules  regarding  the  ad- 
mission and  sojourn  of  war  and  merchant  ves- 
sels in  neutral  waters.  Merchant  submarines 
like  the  Deutschland  and  belligerent  ones  like 
the  U-53  would,  according  to  the  policy  of  the 
United  States,  enjoy  the  same  privileges  as 
liners  or  cruisers  belonging  to  one  of  the  En- 
tente Powers.  A  contrary  rule  was  announced 
by  some  of  the  European  neutrals. 

But  cases  immediately  arose  which  did  affect 
the  neutral  rights  of  the  United  States.  On 
October  30th  the  British  steamships  Marina 
and  Rowanmore  were  sunk  off  the  Irish  coast. 
The  former  was  a  horse  transport  with  Ameri- 
cans in  the  crew;  the  latter  was  a  freighter 
with  a  mixed  cargo.  When  the  Marina  was 
attacked  six  Americans  lost  their  lives.  On 
November  6th,  the  Peninsular  &  Oriental  liner 


THE  PAETING  OF  THE  WAYS  193 

Arabia  was  torpedoed  in  the  Mediterranean 
without  warning,  but  apparently  all  of  the  450 
passengers  were  saved.  The  next  day  the 
American  Hawaiian  steamship  Columbian,  with 
a  cargo  of  steel  for  Italy,  was  torpedoed,  the 
crew  being  compelled  to  take  to  open  boats. 

Since  the  destruction  of  the  Marina  caused 
the  death  of  six  Americans,  and  the  attack  on 
the  Arabia  was  a  violation  of  the  pledge  that 
^'liners''  would  not  be  sunk  without  warning, 
the  United  States  made  representations  in  both 
cases  to  the  Imperial  German  Government. 
The  reply  as  to  the  Arabia  stated  that  the  sub- 
marine commander  was  convinced  that  it  was  a 
transport  ship  and  consequently  attacked  with- 
out delay.  If  it  could  be  shown  that  the  Arabia 
was  a  passenger  steamer,  ^'the  action  of  the 
commander  would  not  have  been  in  accordance 
with  the  instructions  given  him''  and  the  case 
would  then  be  *^a  regrettable  mistake,  from 
which  the  German  Government  would  promptly 
draw  the  necessary  consequences.''  As  for  the 
Marina  all  the  pertinent  facts  were  not  at  the 
disposal  of  Germany.    But  the  issues  presented 


194    AMEEICA'S  CASE  AGAINST  GERMANY 

were  very  serious/  and  they  were  aggravated 
by  the  sinking  off  the  Spanish  coast  of  the 
American  ship  Chemung  and  in  the  Mediterra- 
nean of  the  British  horse  transport  Russian, 
with  the  loss  of  seventeen  Americans. 

It  was  felt  that  a  crisis  was  approaching  even 
though  on  November  15th  a  denial  was  made 
by  Dr.  Alfred  Zimmermann,  German  Secretary 
for  Foreign  Affairs,  that  neutral  merchant 
ships  were  being  sunk  per  se.  The  German 
naval  forces  were  simply  ^'sinking  as  a  de- 
fensive measure  ammunition  transports  and 
other  contraband  shipments  to  our  enemies  that 
are  calculated  to  lengthen  the  war. ' '  This  was 
being  done  ^'in  punctilious  compliance  with  the 
rules  of  international  law  applying  to  cruiser 
warfare.''  Accordingly,  the  statement  con- 
tinued, Germany  would  ''continue  to  exercise 
her  perfect  good  right  to  take  these  defensive 
measures.    If  neutrals  have  to  lament  the  loss 

*  A  statement  issued  by  the  British  Admiralty  announced  that 
from  May  5th  (the  date  of  Germany's  Sussex  pledge)  to  Octo- 
ber 28th  22  British  merchant  ships  had  been  torpedoed  without 
warning  and  131  non-combatants  had  lost  their  lives.  Some  of 
the  details  of  these  sinkings  are  particularly  revolting.  During 
the  same  period  107  British  ships  had  been  sunk,  the  crews  and 
passengers  being  given  time  to  take  to  open  boats. 


THE  PARTING  OF  THE  WAYS  195 

of  ships  and  cargoes,  it  should  be  remembered 
that  the  real  blame  lies  on  England.'* 

In  spite  of  the  isolated  cases  of  sinkings  it 
was  generally  thought  that  Germany  still  stood 
by  her  pledges,  and  meanwhile  occurred  the 
peace  proposals  which  obscured,  in  the  popular 
mind  at  least,  all  thoughts  of  the  submarine 
warfare.  These  proposals  are  slightly  germane 
to  the  present  discussion  because  they  are  men- 
tioned in  the  final  German  communication.  The 
first  was  made  by  Germany  herself  on  Decem- 
ber 12,  1916.  Addressed  to  the  neutral  powers 
for  transmission  to  the  Allies,  it  expressed  the 
willingness  of  the  Central  Powers  to  negotiate 
for  peace  and  disclaimed  any  responsibility  if 
the  war  continued.  On  December  18th  Presi- 
dent Wilson  addressed  a  note  to  all  the  bel- 
ligerents calling  upon  them  to  state  the  objects 
for  which  they  were  fighting  in  order  to  learn 
''how  near  the  haven  of  peace  may  be  for  which 
all  mankind  longs  with  an  intense  and  increas- 
ing longing.''  The  German  reply  was  couched 
in  vague  terms  and  merely  expressed  a  will- 
ingness to  send  delegates  to  a  meeting  of  the 
belligerent  states.    On  the  other  hand,  the  re- 


196    AMEEICA'S  CASE  AGAINST  GERMANY 

plies  of  the  Entente  Allies  to  the  German  pro- 
posals (December  30th)  and  to  President  Wil- 
son's note  (January  10th,  1917)  more  nearly 
answered  Mr.  Wilson's  request  for  a  statement 
of  the  objects  for  which  the  war  was  being 
fought  and  the  terms  upon  which  peace  would 
be  agreed  to.  In  addition  to  this,  they  con- 
stituted a  severe  arraignment  of  the  part 
played  by  Germany  in  bringing  on  the  war  and 
her  methods  of  conducting  it.  Germany's  reply 
to  the  Allies,  dated  January  11th,  did  little  more 
than  repeat  the  first  proposal.  Finally,  on  Jan- 
uary 22nd,  Mr.  Wilson  appeared  before  the 
United  States  Senate,  as  the  body  associated 
with  him  ''in  the  final  determination  of  our 
international  obligation,*'  and  set  forth  his 
views  as  to  the  nature  of  a  European  peace  that 
would  be  likely  to  be  permanent  and  the  terms 
upon  which  the  United  States  would  join  a 
League  in  order  to  insure  such  a  peace  by  a 
joint  guarantee. 

Copies  of  this  address  were  transmitted  to 
the  belligerent  governments  and  in  his  commu- 
nication of  January  31st  Count  Bernstorff  said 
that  it  had  received  careful  consideration  and 


THE  PAETING  OF  THE  WAYS  197 

had  gratified  the  Imperial  Government  in  ^ '  that 
the  main  tendencies  of  this  important  statement 
correspond  largely  to  the  desires  and  princi- 
ples professed  by  Germany.''  The  Imperial 
Government  regretted  ' '  that  the  attitude  of  her 
enemies  who  are  so  entirely  opposed  to  peace 
makes  it  impossible  for  the  world  at  present  to 
bring  about  the  realization  of  these  lofty 
ideals. ' '  This  created  a  new  situation  and  Ger- 
many was  forced  to  new  decisions — she  must 
use  every  weapon  at  her  disposal  in  the  fight 
for  existence. 

*' Since  two  years  and  a  half  England  is  using  her 
naval  power  for  a  criminal  attempt  to  force  Germany 
into  submission  by  starvation.  In  brutal  contempt  of 
international  law  the  group  of  powers  led  by  Eng- 
land not  only  curtail  the  legitimate  trade  of  their 
opponents  but  they  also  by  ruthless  pressure  com- 
pel neutral  countries  either  to  altogether  forego 
every  trade  not  agreeable  to  the  Entente  Powers  or 
to  limit  it  according  to  their  arbitrary  decrees.  The 
American  Government  knows  the  steps  which  have 
been  taken  to  cause  England  and  her  allies  to  return 
to  the  rules  of  international  law  and  to  respect  the 
freedom  of  the  seas.  The  English  Government,  how- 
ever, insists  upon  continuing  its  war  of  starvation, 


198    AMEEICA'S  CASE  AGAIXST  GERMANY 

which  does  not  at  all  affect  the  military  power  of  its 
opponents  but  compels  women  and  children,  the  sick 
and  the  aged,  to  suffer  for  their  country  pains  and 
privations  which  endanger  the  vitality  of  the  nation. 
Thus  British  tyranny  mercilessly  increases  the  suffer- 
ings of  the  world  indifferent  to  the  laws  of  humanity, 
indifferent  to  the  protests  of  the  neutrals  whom  they 
severely  harm,  indifferent  even  to  the  silent  longing 
for  peace  among  England's  own  allies.  Each  day  of 
the  terrible  struggle  causes  new  destruction,  new  suf- 
ferings. Each  day  shortening  the  war  will  on  both 
sides  preserve  the  life  of  thousands  of  brave  soldiers 
and  be  a  benefit  to  mankind. 

''The  Imperial  Government  could  not  justify  before 
its  own  conscience,  before  the  German  people,  and 
before  history  the  neglect  of  any  means  destined  to 
bring  about  the  end  of  the  war.  Like  the  President 
of  the  United  States,  the  Imperial  Government  had 
hoped  to  reach  this  goal  by  negotiations.  Since  the 
attempts  to  come  to  any  understanding  with  the  En- 
tente Powers  have  been  answered  by  the  latter  with 
the  announcement  of  an  intensified  continuation  of 
the  war,  the  Imperial  Government — in  order  to  serve 
the  welfare  of  mankind  in  a  higher  sense  and  not  to 
wrong  its  own  people — is  now  compelled  to  continue 
the  fight  for  existence,  again  forced  upon  it,  with  the 
full  employment  of  all  the  weapons  which  are  at 
its  disposal. 

''Sincerely  trusting  that  the  people  and  Govern- 


THE  PARTING  OF  THE  WAYS  199 

ment  of  the  United  States  will  understand  the  mo- 
tives for  this  decision  and  its  necessity,  the  Imperial 
Government  hopes  that  the  United  States  may  view 
the  new  situation  from  the  lofty  heights  of  impartial- 
ity and  assist  on  their  part  to  prevent  further  misery 
and  avoidable  sacrifice  of  human  life." 

The  two  memoranda  enclosed  announced  a 
campaign  on  the  high  seas  utterly  unparalleled 
in  its  lawlessness.  The  first  memorandum 
charged  that  the  Entente  Powers  were  violat- 
ing all  the  rules  of  international  law  while  Ger- 
many had  not  made  unrestricted  use  of  the 
weapon  which  she  possessed  in  her  submarines. 
Since  the  Entente  Powers  had  made  it  impos- 
sible to  come  to  an  understanding  based  upon 
the  equality  of  rights  of  all  nations,  ' '  Germany 
is  unable  further  to  forego  the  full  use  of  her 
submarines. ' '  The  United  States  would  under- 
stand, it  was  not  doubted,  that  this  situation 
was  forced  upon  Germany  by  the  brutal  meth- 
ods of  warfare  used  against  her  and  the  deter- 
mination of  the  Allies  to  crush  the  Central  Pow- 
ers. These  considerations  gave  back  to  Ger- 
many the  freedom  of  action  which  she  reserved 
in  her  note  on  the  Sussex,  May  4,  1916. 


200    AMEEICA'S  CASE  AGAINST  GEEMANY 

**  Under  these  circumstances  Germany  will  meet  the 
illegal  measures  of  her  enemies  by  forcibly  prevent- 
ing after  February  1,  1917,  in  a  zone  around  Great 
Britain,  France,  Italy,  and  in  the  Eastern  Mediter- 
ranean all  navigation,  that  of  neutrals  included,  from 
and  to  England  and  from  and  to  France,  etc.  All 
ships  met  within  that  zone  will  be  sunk. 

*'The  Imperial  Government  is  confident  that  this 
measure  will  result  in  a  speedy  termination  of  the 
war  and  in  the  restoration  of  peace  which  the  Gov- 
ernment of  the  United  States  has  so  much  at  heart. 
Like  the  Government  of  the  United  States,  Germany 
and  her  allies  had  hoped  to  reach  this  goal  by  nego- 
tiations. Now  that  the  war,  through  the  fault  of 
Germany's  enemies,  has  to  be  continued,  the  Imperial 
Government  feels  sure  that  the  Government  of  the 
United  States  will  understand  the  necessity  of  adopt- 
ing such  measures  as  are  destined  to  bring  about 
a  speedy  end  of  the  horrible  and  useless  bloodshed. 
The  Imperial  Government  hopes  all  the  more  for  such 
an  understanding  of  her  position,  as  the  neutrals 
have,  under  the  pressure  of  the  Entente  Powers,  suf- 
fered great  losses,  being  forced  by  them  either  to  give 
up  their  entire  trade  or  to  limit  it  according  to  condi- 
tions arbitrarily  determined  by  Germany's  enemies  in 
violation  of  international  law." 

The  second  memorandum  gave  the  details  of 
the  zone  in  which  all  kinds  of  merchant  shipping 


THE  PAETING  OF  THE  WAYS  201 

would  be  sunk.  Trade  with  the  Entente  Powers 
was  absolutely  barred.  ''Americans  en  route 
to  the  blockaae  zone  on  enemy  freight  steam- 
ers are  not  endangered/^  it  was  said,  "as  the 
enemy  shipping  firms  can  prevent  such  ships  in 
time  from  entering  the  zone."  American  pas- 
senger steamers  could  continue  undisturbed  if 
the  port  of  destination  was  Falmouth;  if  a 
specified  course  was  taken ;  if  the  steamers  were 
marked  with  the  American  flag  on  the  hull  as 
described;  if  the  flags  at  the  mast  heads  were 
arranged  as  indicated,  and  if  the  steamers  were 
lighted  at  night.  No  other  American  vessels, 
however,  could  use  these  markings,  the  cargoes 
must  be  guaranteed  to  be  of  a  non-contraband 
character,  and  only  one  steamer  a  week  could 
sail  in  either  direction,  with  arrival  at  Falmouth 
on  Sunday  and  departure  from  Falmouth  on 
Wednesday. 

This  declaration  came  as  a  thunderbolt. 
There  had,  it  is  true,  been  forecasts  in  the  press 
reports  from  Germany  that  a  resumption  of  an 
unrestricted  submarine  campaign  was  urged 
and  might  be  attempted.  Uncensored  corre- 
spondence from  Cologne  (dated  January  12th) 


202    AMEKICA'S  CASE  AGAINST  GEEMANY 

to  the  London  Times,  for  example,  said  that 
more  than  one  thousand  nnderseas  boats  were 
in  course  of  construction;  three  hundred  were 
in  use;  less  than  one  hundred  had  been  de- 
stroyed, and  a  more  extensive  use  of  them  was 
contemplated.  But  few  indeed  expected  such  a 
drastic  announcement  as  that  made  on  January 
31st.  "What  would  be  the  attitude  of  the  United 
States? 

President  Wilson  announced  his  policy  on 
February  3d  in  an  address  to  the  two  houses  of 
Congress  in  joint  session.  He  quoted  the  sol- 
emn warning  of  his  Sussex  note  that  unless  Ger- 
many immediately  abandoned  her  use  of  sub- 
marines contrary  to  international  law  and  '^the 
universally  recognized  dictates  of  humanity" 
the  United  States  would  sever  diplomatic  rela- 
tions, and  the  German  pledge,  in  reply,  that  it 
would  ^'do  its  utmost  to  confine  the  operations 
of  war  for  the  rest  of  its  duration  to  the  fighting 
forces  of  the  belligerents,''  instructions  having 
been  issued  that  vessels  should  not  be  sunk  in 
the  war  zone  '^without  warning  and  without 
saving  human  lives,  unless  these  ships  attempt 
to  escape  or  offer  resistance."    This  promise, 


THE  PARTING  OF  THE  WAYS  203 

however,  as  has  been  pointed  out  above,  was 
quaUfied  by  the  intimation  that  England  must 
relax  some  of  her  restrictions  on  commerce; 
and  since  the  rejoinder  of  the  United  States  on 
May  8th  to  the  effect  that  the  rights  of  Ameri- 
can citizens  on  the  high  seas  could  not  be  made 
contingent  upon  the  conduct  of  any  other  bel- 
ligerent was  not  replied  to,  the  German  pledge 
had  been  accepted  unreservedly.  This  pledge — 
and  likewise  the  many  preceding  it — was  with- 
drawn by  the  decree  of  January  31st,  and  his 
policy  with  regard  to  this  action  President  "Wil- 
son went  on  to  outline  in  measured  words  that 
deserve  to  be  quoted  in  full : 

'*I  think  that  you  will  agree  with  me  that,  in  view 
of  this  declaration,  which  suddenly  and  without  prior 
intimation  of  any  kind  deliberately  withdraws  the  sol- 
emn assurance  given  in  the  Imperial  Government's 
note  of  the  fourth  of  May,  1916,  this  Government  has 
no  alternative  consistent  with  the  dignity  and  honor 
of  the  United  States  but  to  take  the  course  which,  in 
its  note  of  the  eighteenth  of  April,  1916,  it  announced 
that  it  would  take  in  the  event  that  the  German  Gov- 
ernment did  not  declare  and  effect  an  abandonment  of 
the  methods  of  submarine  warfare  which  it  was  then 


204    AMERICA'S  CASE  AGAINST  GERMANY 

employing  and  to  which  it  now  purposes  again  to 
resort. 

''I  have,  therefore,  directed  the  Secretary  of  State 
to  announce  to  His  Excellency  the  German  Ambassa- 
dor that  all  diplomatic  relations  between  the  United 
States  and  the  German  Empire  are  severed,  and  that 
the  American  Ambassador  at  Berlin  will  immediately 
be  withdrawn;  and,  in  accordance  with  this  decision, 
to  hand  to  His  Excellency  his  passports. 

**  Notwithstanding  this  unexpected  action  of  the 
German  Government,  this  sudden  and  deeply  deplor- 
able renunciation  of  its  assurances,  given  this  Gov- 
ernment at  one  of  the  most  critical  moments  of  ten- 
sion in  the  relations  of  the  two  Governments,  I  refuse 
to  believe  that  it  is  the  intention  of  the  German 
authorities  to  do  in  fact  what  they  have  warned  us 
they  will  feel  at  liberty  to  do.  I  can  not  bring 
myself  to  believe  that  they  will  indeed  pay  no  regard 
to  the  ancient  friendship  between  their  people  and 
our  own  or  to  the  solemn  obligations  which  have 
been  exchanged  between  them  and  destroy  American 
ships  and  take  the  lives  of  American  citizens  in  the 
willful  prosecution  of  the  ruthless  naval  program 
they  have  announced  their  intention  to  adopt.  Only 
actual  overt  acts  on  their  part  can  make  me  believe 
it  even  now. 

*'If  this  inveterate  confidence  on  my  part  in  the 
sobriety  and  prudent  foresight  of  their  purpose  should 
unhappily  prove  unfounded;  if  American  ships  and 


THE  PAliTING  OF  THE  WAYS  205 

American  lives  should  in  fact  be  sacrificed  by  their 
naval  commanders  in  heedless  contravention  of  the 
just  and  reasonable  understandings  of  international 
law  and  the  obvious  dictates  of  humanity,  I  shall 
take  the  liberty  of  coming  again  before  the  Congress 
to  ask  that  authority  be  given  me  to  use  any  means 
that  may  be  necessary  for  the  protection  of  our  sea- 
men and  our  people  in  the  prosecution  of  their  peace- 
ful and  legitimate  errands  on  the  high  seas.  I  can 
do  nothing  less.  I  take  it  for  granted  that  all  neu- 
tral Governments  will  take  the  same  course. 

''We  do  not  desire  any  hostile  conflict  with  the 
Imperial  German  Government.  We  are  the  sincere 
friends  of  the  German  people  and  earnestly  desire  to 
remain  at  peace  with  the  Government  which  speaks 
for  them.  We  shall  not  believe  that  they  are  hostile 
to  us  unless  and  until  we  are  obliged  to  believe  it; 
and  we  purpose  nothing  more  than  the  reasonable  de- 
fense of  the  undoubted  rights  of  our  people.  We  wish 
to  serve  no  selfish  ends.  We  seek  to  stand  true  alike 
in  thought  and  in  action  to  the  immemorial  principles 
of  our  people  which  I  sought  to  express  in  my  address 
to  the  Senate  only  two  weeks  ago — seek  merely  to 
vindicate  our  right  to  liberty  and  justice  and  an  un- 
molested life.  These  are  the  bases  of  peace,  not  war. 
God  grant  we  may  not  be  challenged  to  defend  them 
by  acts  of  willful  injustice  on  the  part  of  the  Govern- 
ment of  Germany!" 


206     AMEKICrVS  CASE  AGAINST  GERMANY 

The  same  day  Ambassador  Bernstorff  was 
given  his  passports,  the  American  diplomatic 
and  consular  representatives  were  ordered  to 
leave  Germany,  and  the  United  States  began  to 
prepare  for  possible  eventualities  if  Germany 
committed  some  ^' overt  act.'* 


CHAPTER  XI 

OVERT  ACTS,  AEMED  NEUTRALITY,  AND  WAR 

After  the  break  in  diplomatic  relations 
every  phase  of  Germany's  activities  showed 
that  she  was  unwilling  to  yield  and  would  in- 
sist upon  carrying  out  the  program  which  she 
had  announced.  The  American  representative 
in  Berlin,  Ambassador  Gerard,  did  not  receive 
the  courtesies  to  which  international  law  and 
comity  entitled  him;  it  was  intimated  that  his 
departure  and  the  safety  of  Americans  who 
were  leaving  might  be  made  dependent  upon 
Mr.  Gerard's  agreeing  to  a  revision  of  the  old 
Prussian  treaties  so  that  the  United  States 
would  be  estopped  from  seizing  the  German 
ships  in  American  harbors.  Furthermore,  it 
seemed  like  a  studied  affront  to  the  United 
States  when  the  Imperial  Government  persisted 
in  detaining  seventy-two  American  sailors  from 
the  Yarrowdale  on  the  ground  that  they  had 

207 


208     AMEEICA'S  CASE  AGAINST  GERMANY 

accepted  pay  on  an  armed  vessel  and  were 
hence  prisoners  of  war.  The  United  States 
very  properly  insisted  that  they  could  not  have 
this  status  unless  they  had  committed  hostile 
acts,  and  on  February  16th  the  men  were  re- 
leased. Humiliating  indignities  were  reported 
to  have  been  suffered  by  Americans  leaving 
Berlin  and  altogether  Germany  seemed  to  be 
losing  no  opportunity  to  affront  the  United 
States. 

The  destruction  of  merchant  vessels  by  sub- 
marines began  on  a  wider  and  more  successful 
scale  than  had  at  any  time  been  the  case  since 
the  first  declaration  of  February,  1915.  During 
the  first  two  weeks  after  diplomatic  relations 
were  broken,  nearly  one  hundred  ships  were  re- 
ported sunk  with  a  total  of  more  than  200,000 
tons.  Of  special  concern  to  the  United  States 
were  the  sinking  of  two  American  vessels  and 
an  attack  on  the  French  steamer  Athos  which 
caused  the  death  of  an  American  missionary. 
More  serious,  however,  was  the  virtual  embargo 
which  was  laid  on  the  mails  and  shipments  of 
various  sorts  to  Europe.  With  no  protective 
measures  decided  upon  by  the  Wilson  Adminis- 


OVERT  ACTS— WAR  209 

tration,  American  vessels  were  naturally  fear- 
ful of  braving  the  submarine  menace,  and  the 
country  suffered  a  tremendous  freight  conges- 
tion as  well  as  a  serious  diminution  of  its  export 
trade. 

At  the  end  of  three  weeks  it  seemed  to  be 
clear  that  the  threat  of  Mr.  Wilson's  address  to 
Congress  in  breaking  off  diplomatic  relations 
would  have  no  effect,  and  so  on  February  26th 
he  again  addressed  both  houses,  this  time  to 
ask  for  the  authority  he  deemed  necessary  to 
safeguard  the  rights  of  the  United  States.  He 
reported  that  two  American  vessels  had  been 
sunk:  the  Housatonic  (February  3d),  which  ap- 
peared to  be  a  case  like  that  of  the  William  P. 
Frye  in  which  Germany  had  admitted  liability 
and  had  safeguarded  the  lives  of  the  crew  with 
reasonable  care,  and  the  Lyman  M,  Law  (Feb- 
ruary 12th)  which  ^'disclosed  a  ruthlessness  of 
method  which  deserves  grave  condemnation,  but 
was  accompanied  by  no  circumstances  which 
might  not  have  been  expected  at  any  time  in 
connection  with  the  use  of  the  submarine 
against  merchantmen,  as  the  German  Govern- 
ment has  used  it.''     Five  Norwegian  vessels 


210    AMERICA'S  CASE  AGAINST  GEEMANY 

with  Americans  on  board  had  been  sunk,  but 
the  situation  was  practically  the  same  as  on 
February  3d  when  diplomatic  relations  had 
been  broken,  with  the  exception  of  the  fact  that 
ships  were  tied  up  in  American  ports  because  of 
the  unwillingness  of  the  owners  to  incur  risk 
without  adequate  protection  and  a  congestion 
of  commerce  was  growing  more  serious  every 
day.  No  ^' overt  act''  had  occurred,  but  the  ex- 
pressions of  intention  by  the  German  authori- 
ties and  press  were  not  calculated  to  allay 
apprehension,  and,  ^'no  thoughtful  man  can  fail 
to  see  that  the  necessity  for  definite  action  may 
come  at  any  time,  if  we  are  in  fact,  and  not  in 
word  merely,  to  defend  our  elementary  rights 
as  a  neutral  nation.  It  would  be  most  prudent 
to  be  unprepared."  Mindful  of  the  fact  that 
the  session  of  Congress  was  to  expire  almost 
immediately.  President  Wilson  sought  ^'to  ob- 
tain from  you  full  and  immediate  assurance  of 
the  authority  which  I  may  need  at  any  moment 
to  exercise,"  and  declared; 

*'No  one  doubts  what  it  is  our  duty  to  do.  We 
must  defend  our  commerce  and  the  lives  of  our  peo- 
ple in  the  midst  of  the  present  trying  circumstances, 


OVERT  ACTS— WAE  211 

with  discretion  but  with  clear  and  steadfast  purpose. 
Only  the  method  and  the  extent  remain  to  be  chosen, 
upon  the  occasion,  if  occasion  should  indeed  arise. 
Since  it  has  unhappily  proved  impossible  to  saf  e^ard 
our  neutral  rights  by  diplomatic  means  against  the 
unwarranted  infringements  they  are  suffering  at  the 
hands  of  Germany,  there  may  be  no  recourse  but  to 
armed  neutrality,  which  we  shall  know  how  to  main- 
tain and  for  which  there  is  abundant  American  prec- 
edent. 

''It  is  devoutly  to  be  hoped  that  it  will  not  be 
necessary  to  put  armed  forces  anywhere  into  action. 
The  American  people  do  not  desire  it,  and  our  desire 
is  not  different  from  theirs.  I  am  sure  that  they  will 
understand  the  spirit  in  which  I  am  now  acting,  the 
purpose  I  hold  nearest  my  heart  and  would  wish  to 
exhibit  in  everything  I  do.  I  am  anxious  that  the 
people  of  the  nations  at  war  also  should  understand 
and  not  mistrust  us.  I  hope  that  I  need  give  no  fur- 
ther proofs  and  assurances  than  I  have  already  given 
throughout  nearly  three  years  of  anxious  patience 
that  I  am  the  friend  of  peace  and  mean  to  preserve 
it  for  America  so  long  as  I  am  able.  I  am  not  now 
proposing  or  contemplating  war  or  any  steps  that 
need  lead  to  it.  I  merely  request  that  you  will  accord 
me  by  your  own  vote  and  definite  bestowal  the  means 
and  the  authority  to  safeguard  in  practice  the  right  of 
a  great  people  who  are  at  peace  and  who  are  desirous 
of  exercising  none  but  the  rights  of  peace  to  follow 


212     AMERICA'S  CASE  AGATXST  GERMANY 

the  pursuits  of  peace  in  quietness  and  good  will — 
rights  recognized  time  out  of  mind  by  all  the  civilized 
nations  of  the  world.  No  course  of  my  choosing  or 
of  theirs  will  lead  to  war.  "War  can  come  only  by  the 
willful  acts  and  aggressions  of  others. 

**...!  request  that  you  will  authorize  me  to 
supply  our  merchant  ships  with  defensive  arms, 
should  that  become  necessary,  and  with  the  means  of 
using  them,  and  to  employ  any  other  instrumentali- 
ties or  methods  that  may  be  necessary  and  adequate 
to  protect  our  ships  and  our  people  in  their  legitimate 
and  peaceful  pursuits  on  the  seas.  I  request  also 
that  you  will  grant  me  at  the  same  time,  along  with 
the  powers  I  ask,  a  sufficient  credit  to  enable  me  to 
provide  adequate  means  of  protection  where  they  are 
lacking,  including  adequate  insurance  against  the 
present  war  risks. 

*'I  have  spoken  of  our  commerce  and  of  the  legiti- 
mate errands  of  our  people  on  the  seas,  but  you  will 
not  be  misled  as  to  my  main  thought — the  thought 
that  lies  beneath  these  phrases  and  gives  them  dignity 
and  weight.  It  is  not  of  material  interests  merely 
that  we  are  thinking.  It  is,  rather,  of  fundamental 
human  rights,  chief  of  all  the  right  of  life  itself. 
I  am  thinking,  not  only  of  the  rights  of  Americans 
to  go  and  come  about  their  proper  business  by  waj^ 
of  the  sea,  but  also  of  something  much  deeper,  much 
more  fundamental  than  that.  I  am  thinking  of  those 
rights  of  humanity  without  which  there  is  no  civili- 


OVEET  ACTS— WAR  213 

zation.  My  theme  is  of  those  great  principles  of  com- 
passion and  of  protection  which  mankind  has  sought 
to  throw  about  human  lives,  the  lives  of  noncombat- 
ants,  the  lives  of  men  who  are  peacefully  at  work 
keeping  the  industrial  processes  of  the  world  quick 
and  vital,  the  lives  of  women  and  children  and  of 
those  who  supply  the  labor  which  ministers  to  their 
sustenance.  We  are  speaking  of  no  selfish  material 
rights  but  of  rights  which  our  hearts  support  and 
whose  foundation  is  that  righteous  passion  for  justice 
upon  which  all  law,  all  structures  alike  of  family,  of 
state,  and  of  mankind  must  rest,  as  upon  the  ultimate 
base  of  our  existence  and  our  liberty.  I  cannot  imag- 
ine any  man  with  American  principles  at  his  heart 
hesitating  to  defend  these  things." 

A  measure  was  immediately  prepared  by  the 
Foreign  Eelations  Committee  and  introduced  in 
the  Senate  to  carry  out  President  "Wilson's  pol- 
icy of  armed  neutrality.  It  authorized  the  com- 
manders and  crews  of  all  merchant  vessels  bear- 
ing the  registry  of  the  United  States  ^Ho  arm 
and  defend  such  vessels  against  unlawful  at- 
tacks.'' To  the  President  was  given  power  to 
supply  such  vessels  with  defensive  arms,  fore 
and  aft,  and  ^'to  employ  such  other  instrumen- 
talities and  methods  as  may  in  his  judgment  and 


214    AMERICA'S  CASE  AGAINST  GERMANY 

discretion  seem  necessary  and  adequate  to  pro- 
tect such  vessels  and  the  citizens  of  the  United 
States  in  their  lawful  and  peaceful  pursuits  on 
the  high  seas.''  A  bond  issue  of  $100,000,000 
was  authorized  to  pay  the  necessary  expenses. 
The  House  Committee  on  Foreign  Affairs  was 
unable  to  reach  an  immediate  agreement.  A 
similar  measure  was  before  it,  but  opposition 
developed  to  granting  the  President  the  very 
broad  power  of  employing  ^'such  other  instru- 
mentalities and  methods''  as  might  be  neces- 
sary, and  it  was  urged  also  that  the  stipulation 
be  made  that  the  President  should  not  protect 
ships  carrying  contraband  of  war. 

On  February  28th,  with  the  apparent  inten- 
tion of  rousing  Congress  to  early  action  and 
informing  the  country  of  the  dangers  of  the  in- 
ternational situation  and  the  consequences  of 
the  submarine  warfare,  the  Administration 
made  public  a  note  from  the  German  Foreign 
Minister  to  the  German  Minister  in  Mexico  sug- 
gesting an  offensive  alliance  with  Japan  against 
the  United  States.  This  remarkable  communi- 
cation was  as  follows : 


OVEKT  ACTS— WAE  215 

''Berlin,  Jan.  19,  1917. 

"On  the  1st  of  February  we  intend  to  begin  sub- 
marine warfare  unrestricted.  In  spite  of  this,  it  is 
our  intention  to  endeavor  to  keep  neutral  the  United 
States  of  America. 

"If  this  attempt  is  not  successful,  we  propose  an 
alliance  on  the  following  basis  with  Mexico:  That 
we  shall  make  war  together  and  together  make  peace. 
We  shall  give  general  financial  support,  and  it  is 
understood  that  Mexico  is  to  reconquer  the  lost  ter- 
ritory in  New  Mexico,  Texas,  and  Arizona.  The  de- 
tails are  left  to  you  for  settlement. 

"You  are  instructed  to  inform  the  President  of 
Mexico  of  the  above  in  the  greatest  confidence  as  soon 
as  it  is  certain  that  there  will  be  an  outbreak  of 
war  with  the  United  States,  and  suggest  that  the 
President  of  Mexico,  on  his  own  initiative,  should 
communicate  with  Japan  suggesting  adherence  at 
once  to  this  plan.  At  the  same  time,  offer  to  mediate 
between  Germany  and  Japan. 

"Please  call  to  the  attention  of  the  President  of 
Mexico  that  the  employment  of  ruthless  submarine 
warfare  now  promises  to  compel  England  to  make 
peace  in  a  few  months. 

"ZlMMERMANN.*' 

The  publication  of  this  note  diminished  the 
opposition  and  the  armed  neutrality  resolution 
passed  the  House  of  Eepresentatives  on  March 


216     AMERICA'S  CASE  AGAINST  GERMANY 

1st  by  an  overwhelming  vote,  but  the  rules  of 
the  Senate  which  failed  to  limit  debate  per- 
mitted ^'a  group  of  willful  men,''  in  Mr.  Wil- 
son's phrase,  to  prevent  action  before  the  time 
set  for  the  Congress  to  come  to  an  end.  To 
call  an  immediate  special  session  was  futile  on 
account  of  these  rules,  but  at  the  extra  session 
of  the  Senate  held  after  the  inauguration  to 
pass  upon  nominations,  the  rules  were  radically 
revised,  and  an  overwhelming  majority  of  mem- 
bers in  favor  of  a  particular  measure,  as  was 
the  case  with  the  armed  neutrality  resolution, 
will  now  be  able  to  force  a  vote.  On  March 
9th,  President  Wilson  issued  a  proclamation 
calling  Congress  in  special  session  for  April 
16th,  the  reason  assigned  being  the  necessity 
for  a  great  variety  of  emergency  legislation, 
but  preparations  for  armed  neutrality  went  on 
without  legislative  authorization  and  on  March 
12th  it  was  announced  that  the  United  States 
had  ^^  determined  to  place  upon  all  American 
merchant  vessels  sailing  through  the  barred 
areas  an  armed  guard  for  the  protection  of  the 
vessels  and  the  lives  of  the  persons  on  board." 
Meanwhile    Germany   continued   to    commit 


OVERT  ACTS— WAR  217 

overt  acts.  Just  before  he  started  for  tlie  capi- 
tol  to  read  his  armed  neutrality  address  to  Con- 
gress, President  Wilson  received  word  of  the 
sinking  of  the  Laconia  (February  25th)  with 
the  loss  of  twelve  persons,  among  them  two 
American  citizens.  On  March  12th,  the  Ameri- 
can steamship  Algonquin  was  sunk  and  four- 
teen Americans  who  were  members  of  the  crew 
had  to  spend  twenty-six  hours  in  open  boats. 
On  March  19th,  the  sinking  of  three  American 
ships  was  announced.  The  City  of  Memphis, 
plainly  marked  by  the  American  flag  and  with 
her  name  in  letters  that  could  be  read  three 
miles  away,  was  bound  from  Cardiff  for  New 
York  in  ballast ;  the  Vigilancia  bound  for  Havre 
with  provisions,  was  torpedoed  without  warn- 
ing and  fifteen  of  her  crew  lost  their  lives.  The 
third  American  ship  whose  sinking  was  an- 
nounced was  the  Illinois,  a  tanker  bound  from 
Port  Arthur,  Texas,  to  London.^ 

*  other  submarine  depredations  which  affected  American  in- 
terests were  as  follows:  The  sinking  of  the  Aztec,  an  armed 
merchant  vessel,  was  reported  on  April  2d,  the  day  of  Pres- 
ident Wilson's  war  message;  the  Healdton,  an  American  oil 
ship,  was  sunk  on  March  22d,  and  of  the  twenty-one  members 
of  the  crew  who  lost  their  lives,  seven  were  Americans;  two 
smaller  American  steamers  were  sunk  in  the  Mediterranean  on 


218    AMERICA'S  CASE  AGAi:^ST  GERMANY 

These  sinkings  showed  that  armed  neutrality 
was  inadequate.  On  March  21st,  the  President 
summoned  Congress  into  special  session  on 
April  2d  *'to  receive  a  communication  by  the 
Executive  on  grave  questions  of  national  pol- 
icy, which  should  be  immediately  taken  under 
consideration,''  and  steps  were  at  once  taken 
to  mobilize  the  military  and  economic  resources 
of  the  country  for  the  prosecution  of  a  war. 
Much  had  already  been  done. 

It  was  practically  a  foregone  conclusion  that 
President  Wilson  intended  to  ask  Congress  to 
declare  the  existence  of  a  state  of  war.  The 
pretense  of  armed  neutrality  was  anomalous 
and  inadequate.    As  Mr.  Wilson  pointed  out  in 

April  4th  and  7th;  four  Belgian  relief  ships,  carrying  17,000 
tons  of  food,  were  torpedoed.  ''On  April  10  it  was  reported 
by  the  State  Department  that  up  to  April  3,  1917,  German  sub- 
marines had  sunk  during  the  war  686  neutral  vessels,  including 
19  American,  and  attacked  unsuccessfully  79  others,  including 
8  American.  Since  the  German  war  zone  decree  went  into 
effect  on  Feb.  1  more  than  one-third  of  the  vessels  sunk  were 
neutral,  and  a  large  number  of  other  neutral  vessels  were  ter- 
rorized into  staying  in  port.  The  neutral  vessels  sunk  were  as 
follows : 

''Norwegian,  410;  Swedish,  111;  Dutch,  61;  Greek,  50;  Span- 
ish, 2;  Argentine,  1;  Brazilian,  1;  American,  8.     Total,  79.'' 

The  New  York  Times  Current  History,  Vol.  VI,  p.  239  (May, 
1917). 


OVERT  ACTS— WAR  219 

his  address,  Germany  would  probably  have  the 
effrontery  to  treat  American  ships  that  were 
armed  as  pirates.  Again,  the  use  of  force 
against  one  belligerent  and  not  against  the 
other  in  order  to  maintain  neutral  rights,  was 
difficult  of  comprehension  and  was  not  given  the 
support  that  would  be  accorded  a  declaration 
of  war.  Particularly  was  this  the  case  with 
regard  to  munitions.  Senator  Stone  repre- 
sented a  good  deal  more  than  his  own  opinion 
when  he  sought  to  amend  the  armed  ship  bill 
so  that  the  United  States  could  not  arm  or  con- 
voy vessels  carrying  absolute  contraband  to 
Great  Britain  or  her  allies.  A  large  number  of 
Americans  believed  that  Germany  was  justified 
in  taking  any  measures  to  stop  shipments  of 
munitions  from  reaching  her  enemies,  and  that 
the  United  States  should  not  use  force  to  pro- 
tect her  citizens  engaged  in  this  trade.  They 
could  not  understand  the  justice  of  the  indis- 
putable principles  of  international  law  for 
which  the  United  States  had  contended:  That 
the  trade  in  such  articles  should  continue,  sub- 
ject to  the  belligerent  rights  of  blockade,  cap- 
ture, visit  and  search,  with  the  lives  of  the  crew 


220    AMEEICA'S  CASE  AGAINST  GERMANY 

being  safe-guarded  in  every  case.  And  if  an 
armed  munition  ship  had  been  destroyed  by  a 
German  submarine,  there  would,  I  venture,  have 
been  no  great  outcry  from  American  opinion 
and  no  overwhelming  decision  that  the  final 
overt  act  had  occurred  and  war  was  the  only 
possible  resort.  There  has  seemed  to  be  a 
curious  mental  vacuity  on  the  justice  of  the 
assertion  that  the  crew  of  a  munition  ship  have 
rights  identical  with  those  of  a  passenger  liner, 
if  both  are  unresisting,  or  if  both  resist  the 
exercise  of  the  belligerent  authority.  This  was 
a  very  weak  feature  of  our  armed  neutrality. 
On  the  other  hand,  wanton  acts  like  the  sinking 
of  the  Lusitania  and  Laconia  appealed  to  the 
people  as  justifying  war  by  the  United  States. 
If  by  reason  of  these  overt  acts  war  were  em- 
barked upon,  then  public  opinion  would  sanc- 
tion any  measures  which  would  contribute  to  the 
defeat  of  Germany;  and  the  peculiar  status 
which  munition  ships  occupy  in  the  popular 
mind  would  be  done  away  with,  for  insuring 
their  passage  would  be  one  of  our  contributions 
to  the  conduct  of  the  war. 

Armed   neutrality,    furthermore,    could   not 


OVERT  ACTS— WAR  221 

protect  Americans  on  board  of  belligerent  mer- 
chant vessels.  Should  our  sole  answer  to  the 
German  threats  be  the  arming  of  our  own  ves- 
sels? Should  we  sit  by  quiescent  when — as 
would  certainly  be  the  case  unless  the  English 
measures  against  the  submarines  were  extraor- 
dinarily successful — American  citizens  con- 
tinued to  lose  their  lives  through  the  sinking  of 
belligerent  vessels?  And,  finally,  so  long  as  the 
United  States  maintained  a  pretense  of  neu- 
trality, it  would  be  more  difficult  to  punish  of- 
fenses against  the  Government.  It  is  not  pos- 
sible constitutionality,  while  we  are  at  peace, 
to  put  within  federal  jurisdiction  all  the  activi- 
ties of  German  agents  in  this  country ;  we  have 
even  witnessed  the  ridiculously  impotent  expe- 
dient of  attempting  to  punish  plotters  under  the 
Sherman  anti-trust  law.  More  than  that,  rig- 
orous definition  and  severe  punishment  for  the 
acts  which  ought  to  be  prohibited  would  be 
much  more  palatable  to  our  liberty  loving  ideals 
if  the  country  were  actually  at  war  and  the 
punishment  were  for  giving  aid  and  comfort  to 
the  enemies  of  the  United  States — in  short,  for 
treason.    The  defense  of  the  realm  from  the  ac- 


222    AMERICA'S  CASE  AGAINST  GERMANY 

tivities  of  German  agents  within  our  territory 
would  be  easier  from  both  standpoints  if  we 
abandoned  an  attempt  to  remain  neutral. 

All  that  I  have  said  omitted  a  fundamental 
consideration:  That  the  cause  of  the  Allies  is 
the  cause  of  the  United  States ;  that  our  inter- 
ests would  be  subserved  by  their  speedy  vic- 
tory and  that  our  interests  would  be  menaced 
by  their  defeat;  that  it  is  our  moral  duty  to 
give  them  what  assistance  we  can  in  order  to 
insure  their  success,  irrespective  of  our  griev- 
ances against  Germany  for  her  murder  of 
American  citizens.  This  was  in  part  adverted 
to  by  Mr.  Wilson  when  he  addressed  Congress. 
The  submarine  warfare  was  against  all  man- 
kind, against  all  nations;  and  in  entering  the 
conflict  we  would  be  ''but  one  of  the  champions 
of  the  rights  of  mankind, ''  fighting  ''for  de- 
mocracy, for  the  right  of  those  who  submit  to 
authority  to  have  a  voice  in  their  own  gov- 
ernments, for  the  rights  and  liberties  of  small 
nations,  for  a  universal  dominion  of  right  by 
such  a  concert  of  free  peoples  as  shall  bring 
peace  and  safety  to  all  nations  and  make  the 
world  itself  at  last  free.'* 


OVERT  ACTS— WAR  223 

Four  days  after  the  President's  address,  both 
Houses  of  Congress  passed  the  joint  resolution 
declaring  that  whereas  the  Imperial  German 
Government  had  committed  repeated  acts  of 
war  against  the  United  States,  the  state  of  war 
thus  forced  upon  this  country  was  formally  de- 
clared, and  the  President  was  directed  ^'to  em- 
ploy the  entire  naval  and  military  forces  of  the 
United  States  and  the  resources  of  the  Govern- 
ment to  carry  on  war  against  the  Imperial  Ger- 
man Government ;  and  to  bring  the  conflict  to  a 
successful  termination  all  the  resources  of  the 
country  are  hereby  pledged  by  the  Congress  of 
the  United  States.''  This  resolution  was  the 
formal  declaration  of  the  fifth  war  in  which  the 
United  States  had  ever  engaged  with  a  foreign 
power. 


CHAPTEE  XII 

THE   RIGHT   OF   RETALIATION 

In  view  of  the  measured  indictments  which 
one  after  another  Mr.  Wilson's  notes  furnish  of 
the  German  methods  and  of  the  ethically  and 
legally  justifiable  ground  for  hostile  measures 
on  the  part  of  the  United  States,  it  is  unneces- 
sary here  to  attempt  any  exhaustive  summary. 
The  list  of  American  ships  destroyed,  the  cal- 
lous disregard  of  the  nature  of  their  nationality, 
passengers,  and  cargo,  the  destruction  of  ves- 
sels carrying  women  and  children  with  the  loss 
of  many  lives,  and  the  final  announcement  of  an 
unrestricted  campaign  of  f rightfulness  have  all 
been  set  forth.  It  only  remains  to  comment  on 
one  phase  of  the  controversy — namely,  the  lack 
of  justification  for  reprisals  like  those  of  Ger- 
many, and  the  apparent  lenience  with  which  the 
United  States  has  treated  the  British  interfer- 
ences with  our  trade. 

224 


THE  EIGHT  OF  EETALIATION"  225 

Both  the  British  Orders  in  Council  stopping 
trade  to  the  Central  Powers,  and  the  German 
war  zone  decrees  allege  that  they  are  proper 
retaliations  for  disregard  of  international  law 
on  the  part  of  the  enemy.  The  United  States 
in  its  Lusitania  note  of  July  21,  1915,  answered 
this  claim  by  asserting  that  *^a  belligerent  act 
of  retaliation  is  per  se  an  act  beyond  the  law, 
and  the  defense  of  an  act  as  retaliatory  is  an 
admission  that  it  is  illegal.''  Now,  reprisals 
are  recognized  belligerent  rights  and  it  is  only 
to  be  expected  that  neutrals  may  to  some  extent 
be  injured.  But,  there  is  a  vast  difference  be- 
tween a  reprisal  aimed  directly  at  the  enemy 
and  calculated  to  have  immediate  effect  on  the 
conduct  of  the  war,  which  incidentally  affects 
neutrals,  and  one  which  is  not  directed  against 
the  armed  forces  of  the  enemy  at  all  but  wan- 
tonly and  immediately  kills  or  injures  neutrals 
and  noncombatants.  As  a  recent  writer  of  au- 
thority has  said ; 

**  Through  reprisal  and  counter-reprisal,  each  ex- 
ceeding the  other  in  barbarity,  war  would  inevitably 
revert  to  its  most  primitive  form,  and  there  would  be 
nothing  to  prevent  a  final  burning  of  prisoners  at 


226    AMERICA'S  CASE  AGAINST  GEEMAXY 

the  stake.  Nor  should  overbidding  be  permitted  in 
reprisals  which  tend  to  injure  neutrals.  An  act  of 
reprisal  must  not  involve  a  more  serious  impairment 
of  neutral  rights  than  the  alleged  offense  for  which 
the  reprisal  is  taken.  For  otherwise,  through  re- 
prisal and  counter-reprisal,  all  neutral  rights  might 
eventually  disappear  in  such  a  world-war  as  is  now 
raging. 

''If  our  Government  had  taken  this  position,  it 
would,  I  think,  have  enlisted  the  support  of  all  neu- 
trals, and  its  suggestions  would  probably  have  been 
accepted,  at  least  after  the  establishment  of  peace, 
by  all  the  countries  now  at  war.  And  it  would  have 
found  a  clear  and  tenable  ground  on  which  to  protest 
against  the  German  Svar  zone'  proclamation.  Ap- 
plying the  principles  suggested,  it  could  have  said  to 
Germany:  Your  proposal  to  sacrifice  non-combatant 
lives  and  to  endanger  the  lives  of  neutrals  is  not 
a  legitimate  retaliation  for  any  measure,  however  il- 
legal, which  Great  Britain  has  adopted ;  for  the  taking 
of  life  is  no  proper  retaliation  for  the  taking  of 
goods. '  '^ 

In  this  important  distinction  we  find  the  an- 
swer to  the  argument  that  we  have  treated  Eng- 
land more  leniently  than  Germany.  Great  Brit- 
ain has  had  an  almost  absolute  command  of  the 

*Mimro  Smith,  "American  Diplomacy  in  the  European 
War, ' '  Political  Science  Quarterly,  Vol.  XXXI,  pp.  481,  508. 


THE  RIGHT  OF  EETALIATION  227 

sea  and  she  has  very  largely  extinguished  neu- 
tral trading  rights.  Against  this  action  we  made 
only  feeble  protests  while  Germany  we  an- 
swered with  a  threat  of  war.  The  difference  is 
to  be  found  in  considerations  of  humanity,  for 
England's  restrictions  upon  trade  have  not 
caused  the  loss  of  a  single  life  while  the  sub- 
marine campaign  has  resulted  in  the  death  of 
more  than  two  thousand  noncombatants.  Eous- 
seau  first  put  emphasis  upon  war  as  a  struggle 
between  States  and  their  armed  forces  and  this 
gave  rise  to  the  distinction  between  combatants 
and  noncombatants.  The  disregard  of  this  dis- 
tinction by  Germany  is  the  real  cause  of  our 
answ^ering  her  with  acts  and  not  words ;  had  her 
reprisals  been  comparable  in  degree  and  hu- 
manity with  those  of  England,  we  would  simply 
have  protested  and  would  have  laid  a  basis  for 
claims  in  damages  after  the  conclusion  of  the 
war. 

But  this  takes  no  account  of  the  German  plea 
that  the  submarine  campaign  is  a  proper  reply 
to  the  criminal  and  illegal  attempt  of  England 
to  starve  Germany  into  submission  through 
stopping  all  trade,  or  that  the  submarine  is  a 


228    AMERICA'S  CASE  AGAINST  GERMANY 

new  weapon  and  that  the  old  rules  concerning 
the  destruction  of  prizes  are  inapplicable.  Thus 
Ambassador  Bernstorff's  note  of  January  31, 
1917,  protests  that  for  two  and  a  half  years 
England  had  been  ^^  using  her  naval  power  for 
a  criminal  attempt  to  force  Germany  into  sub- 
mission by  starvation, ' '  this  being  ''in  brutal 
contempt  of  international  law."  And  in  the 
note  which  he  presented  to  the  State  Depart- 
ment on  March  8,  1916,  he  said  that  ''in  order 
to  fight  her  opponents'  measures,  which  were 
absolutely  contrary  to  international  law,  she 
chose  for  this  purpose  a  new  weapon,  the  use 
of  which  had  not  yet  been  regulated  by  inter- 
national law,  and,  in  doing  so,  could  and  did  not 
violate  any  existing  rules  but  only  took  into  ac- 
count the  peculiarity  of  the  new  weapon,  the 
submarine  boat/' 

In  answer  to  these  claims  attention  should  be 
directed  to  the  able  comment  of  Lord  Robert 
Cecil,  British  Blockade  Minister,  made  at  the 
time  of  the  exchanges  with  Germany  over  the 
Sussex.    Lord  Robert  declared  that 

"So  far  as  is  known,  the  measures  taken  by  Great 
Britain  against  German  trade  have  cost  no  neutral 


THE  RIGHT  OF  RETALIATION  229 

life.  Great  Britain  maintains  that  they  are  in  accord 
with  the  principles  of  international  law  and  is  pre- 
pared to  make  good  that  claim.  They  can  surely 
compare  favorably,  so  far  as  consideration  to  neu- 
trals is  concerned,  with  a  policy  whose  fruits  are 
seen  in  the  tragedies  of  the  Lusitania,  the  Arabic, 
and  the  Sussex/^ 

In  answer  to  the  plea  that  British  trade  re- 
strictions compelled  Germany  to  resort  to  the 
submarine  campaign,  he  set  out  the  following 
incidents : 

"September,  1914. — Dutch  vessel  Maria,  from  Cal- 
ifornia for  Dublin  and  Belfast  with  cargo  of  grain  for 
the  civil  population,  sunk  by  the  German  cruiser 
Karlsruhe. 

**Oct.  26,  1914. — The  Admiral  Ganteaume,  with 
2,000  unarmed  refugees,  sunk  by  a  German  sub- 
marine. 

"December,  1914. — Admiral  von  Tirpitz  foreshad- 
owed adoption  of  submarine  campaign. 

"Jan.  27,  1915. — American  ship  William  P.  Frye, 
with  wheat  from  Seattle  for  Queenstown,  sunk  by 
German  auxiliary  cruiser  Kronprinz  Wilhelm.  [The 
William  P.  Frye  was  sunk  by  the  Prinz  Eitel  Fried- 
rich,  according  to  the  records.] 

"Feb.  4,  1915. — Declaration  by  the  German  Gov- 
ernment of  their  intention  to  institute  a  general  sub- 


230    AMERICA'S  CASE  AGAINST  GERMANY 

marine  blockade  of  Great  Britain  and  Ireland,  with 
the  avowed  purpose  of  cutting  off  all  supplies  from 
these  islands.  This  blockade  was  put  into  effect  offi- 
cially Feb.  18,  although,  as  a  matter  of  fact,  a  mer- 
chant ship  had  been  sunk  by  a  German  submarine  at 
the  end  of  January. 

Not  until  March  11,  1915,  did  Great  Britain 
attempt  to  cut  off  German  trade  absolutely  and 
before  that  time  submarine  outrages  had  taken 
place.^  Noncombatants  in  Germany,  further- 
more, were  not  suffering  so  very  severely,  since 
the  German  Chancellor  had  recently  declared : 

* '  Our  enemies  forget  that,  thanks  to  the  organizing 
powers  of  the  whole  nation,  Germany  is  equal  to  the 
task  of  the  distribution  of  victuals.  Our  stocks  of 
bread  and  grain  will  not  only  be  sufficient,  but  will 
leave  an  ample  reserve  with  which  to  commence  the 
new  year.  We  have  not  run  short  of  anything  in  the 
past,  nor  shall  we  run  short  of  anything  in  the  fu- 
ture.'' 

Nevertheless,  assuming  that  there  was  actual 
want  in  Germany  it  was  a  legitimate  method  of 

'  * '  As  for  their  pretended  tenderness  for  noncombatants, ' ' 
said  Lord  Eobert,  * '  their  slaughter  of  old  men,  children,  women, 
and  girls  in  Belgium  and  Northern  France,  not  to  speak  of  the 
unreported  proceedings  of  their  honored  allies  in  Armenia,  for- 
ever prevents  them  from  being  heard  in  such  a  cause. ' ' 


THE  EIGHT  OF  EETALIATION         231 

warfare.  In  view  of  the  use  of  Zeppelin  bombs, 
poisoned  gas,  and  submarine  torpedoes,  not  to 
speak  of  atrocities,  the  German  authorities. 
Lord  Eobert  concluded,  presumed  '^too  far  on 
the  toleration  of  mankind  when  they  complain 
of  such  a  comparatively  humane  method  of  war- 
fare as  blockade.'' 

The  speciousness  of  the  claim  that  the  sub- 
marine, being  a  new  engine  of  warfare,  is  an 
exception  to  established  rules,  and  is  subject  to 
no  restraints,  has  been  pointed  out  in  several  of 
the  American  notes  to  Germany  and  needs  only 
a  bare  mention  here.    As  has  been  well  said : 

''In  the  use  of  a  new  weapon  a  belligerent  nation 
may  unquestionably  violate  well-recognized  rules  of 
international  law.  The  armored  tractor  cars  recently 
introduced  by  the  British,  for  example,  are  new 
weapons,  the  use  of  which  has  not  been  regulated  by 
international  law;  but  it  does  not  follow  that  Great 
Britain  could  lawfully  use  these  new  weapons  to  de- 
stroy enemy  field  hospitals. 

*'In  using  its  submarines  against  merchant  ships, 
Germany  in  fact  invokes  established  rules  of  inter- 
national law.  It  claims  for  submarines  the  rights  ac- 
corded to  cruisers.  Cruisers  have  the  right  to  capture 
enemy  vessels  and  neutral  vessels  carrying  contra- 


232     AMERICA'S  CASE  AGAINST  GERMANY 

band.  Whenever  it  is  impossible  or  even  inexpedient 
to  take  a  captured  vessel  into  any  of  the  captor 's  home 
ports  for  condemnation,  it  is  permissible  to  sink  it. 
Due  provision,  however,  must  always  be  made  for  the 
safety  of  the  noncombatants,  the  crew  and  any  pas- 
sengers. ' '  ^ 

Americans  case  against  Germany,  then,  rests 
upon  the  ground,  as  Mr.  Wilson  said  in  his  ad- 
dress to  Congress,  that  American  ships  and 
American  lives  have  been  sacrificed  by  naval 
commanders  ''in  needless  contravention  of  the 
just  and  reasonable  understandings  of  interna- 
tional law  and  the  obvious  dictates  of  human- 
ity.^' All  that  the  United  States  seeks  is  to 
vindicate  its  claims  to  ' '  liberty  and  justice  and 
an  unmolested  life,''  and  this  could  only  be 
accomplished  by  going  to  war  with  the  Power 
which  has  sought  to  prevent  the  enthronement 
of  public  right  as  the  guiding  principle  of  the 
relations  between  states.  The  submarine  cam- 
paign was  simply  the  one  manifestation  of  hos- 
tility to  this  ideal  which  was  sufficient  to  bring 
in  American  Democracy  on  the  side  of  England 

» Smith,  ' '  American  Diplomacy, ' '  Political  Science  Quarterly, 
Vol.  XXXI,  p.  495. 


THE  EIGHT  OF  EETALIATION  233 

and  France  and  Eussia.  As  I  pointed  out  in  the 
very  beginning,  it  is  fundamental;  but  for  the 
insistence  upon  this  weapon  by  Germany  we 
would  probably  still  be  at  peace,  in  spite  of  the 
terrible  set-back  to  our  moral  and  political 
ideals  and  the  dangerous  menace  to  our  safety 
which  the  defeat  of  thei  Allies  would  have  in- 
dubitably meant.  Yet  we  should  not  forget  the 
eloquent  words  of  M.  Rene  Viviani,  French  Min- 
ister of  Justice,  and  head  of  the  French  War 
Commission  to  the  United  States: 

**Yes;  doubtless  you  had  your  slaughtered  dead  to 
avenge,  to  avenge  the  insults  heaped  on  your  honor. 
You  could  not  for  one  moment  conceive  that  the  land 
of  Lincoln,  the  land  of  Washington,  could  bow  hum- 
bly before  the  imperial  eagle.  But  not  for  that  did 
you  rise;  not  for  your  national  honor  alone;  do  not 
say  it  was  for  that.  You  are  fighting  for  the  whole 
world ;  you  are  fighting  for  all  liberty ;  you  are  fight- 
ing for  civilization;  that  is  why  you  have  risen  in 
battle."  It  is  against  "a  whole  race  so  madly  intox- 
icated with  conceit  that  it  imagines  it  is  predestined 
to  dominate  the  world  and  is  amazed  to  see  free  men 
rise  and  contest  its  rights.  .  .  .  And  when  in  far- 
off  days  after  this  war  history  shall  tell  why  we 
fought  ...  it  will  say  why  all  the  peoples  rose  in 


234    AMERICA'S  CASE  AGAINST  GERMANY 

battle,  why  the  free  allied  peoples  fought.  Not  for 
conquest!  They  were  not  nations  of  prey.  No  mor- 
bid ambitions  lay  festering  in  their  hearts  and  con- 
sciences. Why  then  did  they  fight?  To  repel  the 
most  brutal  and  insidious  of  aggressions.  They 
fought  for  the  respect  of  international  treaties  tram- 
pled under  foot  by  the  brutal  soldiery  of  Germany; 
they  fought  to  raise  all  peoples  of  the  earth  to  free 
breath,  to  the  ideal  of  liberty  for  all,  so  that  the  world 
might  be  habitable  for  free  men — or  to  perish." 

That  Mr.  Wilson  has  been  one  of  our  most 
peace-loving  presidents,  history  will  not  dis- 
pute. As  the  foregoing  pages  abundantly  show, 
opportunity  after  opportunity  was  offered  the 
Imperial  Government  of  Germany  to  renounce 
lawlessness  and  to  cease  invasions  of  our  sov- 
ereignty just  as  real  as  the  landing  of  an  army. 
The  President's  peace  note  of  December  called 
in  vain  for  a  definition  of  aims  which  would 
deny  the  intended  subjugation  of  small  states 
or  a  great  German  Empire  under  which  liberty 
would  perish.  Armed  neutrality,  or  a  technical 
state  of  war  with  naval  cooperation,  money,  and 
supplies  would  have  sufficed  if  America  had 
gone  in  only  because  her  honor  had  been  vio- 
lated, her  citizens  murdered.     Bui  lo  send  to 


THE  EIGHT  OF  RETALIATION         235 

France  our  finest  men,  in  unlimited  numbers 
secured  on  the  basis  of  compulsory  service; 
to  pledge  all  the  resources  of  the  country,  as 
did  the  congressional  resolution  declaring  war 
— such  a  readiness  for  sacrifice  means  that 
America  is  not  merely  safeguarding  her  rights, 
but  it  means  that  America,  in  M.  Viviani's 
phrase  again,  will  ^'battle  till  the  end  for  the 
deliverance  of  humanity,  for  the  deliverance 
of  democracy.''  Perhaps  Woodrow  Wilson 
waited  wisely  until  the  issue  had  been  made 
translucently  clear — until  the  liberalization  of 
Eussia  removed  the  only  anomaly  and  made  the 
battle  one  of  free  nations  against  a  would-be 
assassin  of  humanity,  democracy,  and  the  fu- 
ture peace  of  the  world. 


APPENDIX  I 

PRESIDENT  Wilson's  address  to  congress,  april 

2,  1917,  ASKING  FOR  A  DECLARATION  THAT 
A  STATE  OF  WAR  EXISTED 

Gentlemen  of  the  Congress  :  I  have  called 
the  Congress  into  extraordinary  session  because 
there  are  serious,  very  serious,  choices  of  policy 
to  be  made,  and  made  immediately,  which  it 
was  neither  right  nor  constitutionally  permis- 
sible that  I  should  assume  the  responsibility  of 
making. 

On  the  third  of  February  last  I  officially  laid 
before  you  the  extraordinary  announcement  of 
the  Imperial  German  Government  that  on  and 
after  the  first  day  of  February  it  was  its  pur- 
pose to  put  aside  all  restraints  of  law  or  of 
humanity  and  use  its  submarines  to  sink  every 
vessel  that  sought  to  approach  either  the  ports 
of  Great  Britain  and  Ireland  or  the  western 
coasts  of  Europe  or  any  of  the  ports  controlled 
by  the  enemies  of  Germany  within  the  Mediter- 

237 


238    AMERICA'S  CASE  AGAINST  GERMANY 

ranean.  That  had  seemed  to  be  the  object  of 
the  German  submarine  warfare  earlier  in  the 
war,  but  since  April  of  last  year  the  Imperial 
Government  had  somewhat  restrained  the  com- 
manders of  its  undersea  craft  in  conformity 
with  its  promise  then  given  to  us  that  passenger 
boats  should  not  be  sunk  and  that  the  warning 
would  be  given  to  all  other  vessels  which  its 
submarines  might  seek  to  destroy,  when  no  re- 
sistance was  offered  or  escape  attempted,  and 
care  taken  that  their  crews  were  given  at  least 
a  fair  chance  to  save  their  lives  in  their  open 
boats.  The  precautions  taken  were  meagre  and 
haphazard  enough,  as  was  proved  in  distressing 
instance  after  instance  in  the  progress  of  the 
cruel  and  unmanly  business,  but  a  certain  de- 
gree of  restraint  was  observed.  The  new  pol- 
icy has  swept  every  restriction  aside.  Vessels 
of  every  kind,  whatever  their  flag,  their  char- 
acter, their  cargo,  their  destination,  their  er- 
rand, have  been  ruthlessly  sent  to  the  bottom 
without  warning  and  without  thought  of  help 
or  mercy  for  those  on  board,  the  vessels  of 
friendly  neutrals  along  with  those  of  belliger- 
ents.   Even  hospital  ships  and  ships  carrying 


APPENDIX  239 

relief  to  the  sorely  bereaved  and  stricken  peo- 
ple of  Belgium,  though  the  latter  were  pro- 
vided with  safe  conduct  through  the  prescribed 
areas  by  the  German  Government  itself  and 
were  distinguished  by  unmistakable  marks  of 
identity,  have  been  sunk  with  the  same  reckless 
lack  of  compassion  or  of  principle. 

I  was  for  a  little  while  unable  to  believe  that 
such  things  w^ould  in  fact  be  done  by  any  gov- 
ernment that  had  hitherto  subscribed  to  the 
humane  practices  of  civilized  nations.  Interna- 
tional law  had  its  origin  in  the  attempt  to  set  up 
some  law  which  would  be  respected  and  ob- 
served upon  the  seas,  where  no  nation  had  right 
of  dominion,  and  where  lay  the  free  highways 
of  the  world.  By  painful  stage  after  stage  has 
that  law  been  built  up,  with  meager  enough  re- 
sults, indeed,  after  all  was  accomplished  that 
could  be  accomplished,  but  always  with  a  clear 
view,  at  least,  of  what  the  heart  and  conscience 
of  mankind  demanded.  This  minimum  of  right 
the  German  Government  has  swept  aside  under 
the  plea  of  retaliation  and  necessity  and  be- 
cause it  had  no  weapons  which  it  could  use  at 
sea  except  these  which  it  is  impossible  to  em- 


240    AMERICA'S  CASE  AGAINST  GERMANY 

ploy  as  it  is  employing  them  without  throwing 
to  the  winds  all  scruples  of  humanity  or  of  re- 
spect for  the  understandings  that  were  sup- 
posed to  underlie  the  intercourse  of  the  world. 
I  am  not  now  thinking  of  the  loss  of  property 
involved,  immense  and  serious  as  that  is,  but 
only  of  the  wanton  and  wholesale  destruction 
of  the  lives  of  noncombatants,  men,  women,  and 
children,  engaged  in  pursuits  which  have  al- 
ways, even  in  the  darkest  periods  of  modem  his- 
tory, been  deemed  innocent  and  legitimate. 
Property  can  be  paid  for ;  the  lives  of  peaceful 
and  innocent  people  cannot  be.  The  present 
German  submarine  warfare  against  commerce  is 
a  warfare  against  mankind. 

It  is  a  war  against  all  nations.  American 
ships  have  been  sunk,  American  lives  taken,  in 
ways  which  it  has  stirred  us  very  deeply  to 
learn  of,  but  the  ships  and  people  of  other  neu- 
tral and  friendly  nations  have  been  sunk  and 
overwhelmed  in  the  waters  in  the  same  way. 
There  has  been  no  discrimination.  The  chal- 
lenge is  to  all  mankind.  Each  nation  must  de- 
cide for  itself  how  it  will  meet  it.  The  choice 
we  make  for  ourselves  must  be  made  with  a 


APPENDIX  241 

moderation  of  counsel  and  a  temperateness  of 
judgment  befitting  our  character  and  our  mo- 
tives as  a  nation.  We  must  put  excited  feeling 
away.  Our  motive  will  not  be  revenge  or  the 
victorious  assertion  of  the  physical  might  of 
the  nation,  but  only  the  vindication  of  right,  of 
human  right,  of  which  we  are  only  a  single 
champion. 

When  I  addressed  the  Congress  on  the  twen- 
ty-sixth of  February  last  I  thought  that  it  would 
suffice  to  assert  our  neutral  rights  with  arms, 
our  right  to  use  the  seas  against  unlawful  in- 
terference, our  right  to  keep  our  people  safe 
against  unlawful  violence.  But  armed  neutral- 
ity, it  now  appears,  is  impracticable.  Because 
submarines  are  in  effect  outlaws  when  used  as 
the  German  submarines  have  been  used  against 
merchant  shipping,  it  is  impossible  to  defend 
ships  against  their  attacks  as  the  law  of  nations 
has  assumed  that  merchantmen  would  defend 
themselves  against  privateers  or  cruisers,  vis- 
ible craft  giving  chase  upon  the  open  sea.  It  is 
common  prudence  in  such  circumstances,  grim 
necessity  indeed,  to  endeavor  to  destroy  them 
before  they  have  shown  their  own  intention. 


242    AMERICA'S  CASE  AGAINST  GERMANY 

They  must  be  dealt  with  -apon  sight,  if  dealt 
with  at  all.  The  German  Government  denies 
the  right  of  neutrals  to  use  arms  at  all  within 
the  areas  of  the  sea  which  it  has  proscribed, 
even  in  the  defense  of  rights  which  no  modern 
publicist  has  ever  before  questioned  their  right 
to  defend.  The  intimation  is  conveyed  that  the 
armed  guards  which  we  have  placed  on  our  mer- 
chant ships  will  be  treated  as  beyond  the  pale 
of  law  and  subject  to  be  dealt  with  as  pirates 
would  be.  Armed  neutrality  is  ineffectual 
enough  at  best;  in  such  circumstances  and  in 
the  face  of  such  pretensions  it  is  worse  than 
ineffectual:  it  is  likely  only  to  produce  what  it 
was  meant  to  prevent;  it  is  practically  certain 
to  draw  us  into  the  war  without  either  the 
rights  or  the  effectiveness  of  belligerents. 
There  is  one  choice  we  cannot  make,  we  are  in- 
capable of  making :  we  will  not  choose  the  path 
of  submission  and  suffer  the  most  sacred  rights 
of  our  nation  and  our  people  to  be  ignored  or 
violated.  The  wrongs  against  which  we  now 
array  ourselves  are  no  common  wrongs;  they 
cut  to  the  very  roots  of  human  life. 
With  a  profound  sense  of  the  solemn  and  even 


APPENDIX  243 

tragical  character  of  the  step  I  am  taking  and 
of  the  grave  responsibilities  which  it  involves, 
but  in  unhesitating  obedience  to  what  I  deem 
my  constitutional  duty,  I  advise  that  the  Con- 
gress declare  the  recent  course  of  the  Imperial 
German  Government  to  be  in  fact  nothing  less 
than  war  against  the  Government  and  people  of 
the  United  States;  that  it  formally  accept  the 
status  of  belligerent  which  has  thus  been  thrust 
upon  it;  and  that  it  take  immediate  steps  not 
only  to  put  the  country  in  a  more  thorough  state 
of  defense  but  also  to  exert  all  its  power  and 
employ  all  its  resources  to  bring  the  Govern- 
ment of  the  German  Empire  to  terms  and  end 
the  war. 

What  this  will  involve  is  clear.  It  will  involve 
the  utmost  practicable  cooperation  in  counsel 
and  action  with  the  governments  now  at  war 
with  Germany,  and,  as  incident  to  that,  the  ex- 
tension to  those  governments  of  the  most  liberal 
financial  credits,  in  order  that  our  resources 
may  so  far  as  possible  be  added  to  theirs.  It 
will  involve  the  organization  and  mobilization 
of  all  the  material  resources  of  the  country  to 
supply  the  materials  of  war  and  serve  the  inci- 


244    AMEEICA'S  CASE  AGAINST  GERMANY 

dental  needs  of  the  nation  in  the  most  abundant 
and  yet  the  most  economical  and  efficient  way 
possible.  It  will  involve  the  immediate  full 
equipment  of  the  navy  in  all  respects  but  par- 
ticularly in  supplying  it  with  the  best  means  of 
dealing  with  the  enemy's  submarines.  It  will 
involve  the  immediate  addition  to  the  armed 
forces  of  the  United  States  already  provided  for 
by  law  in  case  of  war  at  least  five  hundred  thou- 
sand men,  who  should,  in  my  opinion,  be  chosen 
upon  the  principle  of  universal  liability  to  serv- 
ice, and  also  the  authorization  of  subsequent 
additional  increments  of  equal  force  so  soon  as 
they  may  be  needed  and  can  be  handled  in  train- 
ing. It  will  involve,  also,  of  course,  the  grant- 
ing of  adequate  credits  to  the  Government,  sus- 
tained, I  hope,  so  far  as  they  can  equitably  be 
sustained  by  the  present  generation,  by  well 
conceived  taxation. 

I  say  sustained  so  far  as  may  be  equitable  by 
taxation  because  it  seems  to  me  that  it  would 
be  most  unwise  to  base  the  credits  which  will 
now  be  necessary  entirely  on  money  borrowed. 
It  is  our  duty,  I  most  respectfully  urge,  to  pro- 
tect our  people  so  far  as  we  may  against  the 


APPENDIX  245 

very  serious  hardships  and  evils  which  would  be 
likely  to  arise  out  of  the  inflation  which  would 
be  produced  by  vast  loans. 

In  carrying  out  the  measures  by  which  these 
things  are  to  be  accomplished  we  should  keep 
constantly  in  mind  the  wisdom  of  interfering  as 
little  as  possible  in  our  own  preparation  and 
in  the  equipment  of  our  own  military  forces 
with  the  duty, — for  it  will  be  a  very  practical 
duty, — of  supplying  the  nations  already  at  war 
with  Germany  with  the  materials  which  they 
can  obtain  only  from  us  or  by  our  assistance. 
They  are  in  the  field  and  we  should  help  them 
in  every  way  to  be  effective  there. 

I  shall  take  the  liberty  of  suggesting,  through 
the  several  executive  departments  of  the  Gov- 
ernment, for  the  consideration  of  your  commit- 
tees, measures  for  the  accomplishment  of  the 
several  objects  I  have  mentioned,  I  hope  that  it 
will  be  your  pleasure  to  deal  with  them  as  hav- 
ing been  framed  after  very  careful  thought  by 
the  branch  of  the  Government  upon  which  the 
responsibility  of  conducting  the  war  and  safe- 
guarding the  nation  will  most  directly  fall. 

While  we  do  these  things,  these  deeply  mo- 


246    AMERICA'S  CASE  AGAINST  GEEMANY 

mentous  things,  let  us  be  very  clear,  and  make 
very  clear  to  all  the  world  what  our  motives  and 
our  objects  are.  My  own  thought  has  not  been 
driven  from  its  habitual  and  normal  course  by 
the  unhappy  events  of  the  last  two  months,  and 
I  do  not  believe  that  the  thought  of  the  nation 
has  been  altered  or  clouded  by  them.  I  have 
exactly  the  same  things  in  mind  now  that  I  had 
in  mind  when  I  addressed  the  Senate  on  the 
twenty-second  of  January  last;  the  same  that 
I  had  in  mind  when  I  addressed  the  Congress 
on  the  third  of  February  and  on  the  twenty- 
sixth  of  February.  Our  object  now,  as  then,  is 
to  vindicate  the  principles  of  peace  and  justice 
in  the  life  of  the  world  as  against  selfish  and 
autocratic  power  and  to  set  up  amongst  the 
really  free  and  self-governed  peoples  of  the 
world  such  a  concert  of  purpose  and  of  action  as 
will  henceforth  ensure  the  observance  of  those 
principles.  Neutrality  is  no  longer  feasible  or 
desirable  where  the  peace  of  the  world  is  in- 
volved and  the  freedom  of  its  peoples,  and  the 
menace  to  that  peace  and  freedom  lies  in  the 
existence  of  autocratic  governments  backed  by 
organized  force  which  is  controlled  wholly  by 


APPENDIX  247 

their  will,  not  by  the  will  of  their  people.  We 
have  seen  the  last  of  neutrality  in  such  circum- 
stances. We  are  at  the  beginning  of  an  age 
in  which  it  will  be  insisted  that  the  same  stand- 
ards of  conduct  and  of  responsibility  for  wrong 
done  shall  be  observed  among  nations  and  their 
governments  that  are  observed  among  the  indi- 
vidual citizens  of  civilized  states. 

We  have  no  quarrel  with  the  German  people. 
We  have  no  feeling  towards  them  but  one  of 
sympathy  and  friendship.  It  was  not  upon 
their  impulse  that  their  Government  acted  in 
entering  this  war.  It  was  not  with  their  previ- 
ous knowledge  or  approval.  It  was  a  war  de- 
termined upon  as  wars  used  to  be  determined 
upon  in  the  old,  unhappy  days  when  peoples 
were  nowhere  consiilted  by  their  rulers  and 
wars  were  provoked  and  waged  in  the  interest 
of  dynasties  or  of  little  groups  of  ambitious 
men  who  were  accustomed  to  use  their  fellow 
men  as  pawns  and  tools.  Self -governed  nations 
do  not  fill  their  neighbor  states  with  spies  or  set 
the  course  of  intrigue  to  bring  about  some  crit- 
ical posture  of  affairs  which  will  give  them  an 
opportunity  to  strike  and  make  conquest.    Such 


248    AMERICA'S  CASE  AGAINST  GERMANY 

designs  can  be  successfully  worked  out  only 
under  cover  and  where  no  one  has  the  right  to 
ask  questions.  Cunningly  contrived  plans  of  de- 
ception or  aggression,  carried,  it  may  be,  from 
generation  to  generation,  can  be  worked  out  and 
kept  from  the  light  only  within  the  privacy  of 
courts  or  behind  the  carefully  guarded  confi- 
dences of  a  narrow  and  privileged  class.  They 
are  happily  impossible  where  public  opinion 
commands  and  insists  upon  full  information 
concerning  all  the  nation's  affairs. 

A  steadfast  concert  for  peace  can  never  be 
maintained  except  by  a  partnership  of  demo- 
cratic nations.  No  autocratic  government  could 
be  trusted  to  keep  faith  within  it  or  observe  its 
covenants.  It  must  be  a  league  of  honor,  a  part- 
nership of  opinion.  Intrignie  would  eat  its  vitals 
away;  the  plottings  of  inner  circles  who  could 
plan  what  they  would  and  render  account  to  no 
one  would  be  a  corruption  seated  at  its  very 
heart.  Only  free  peoples  can  hold  their  purpose 
and  their  honor  steady  to  a  common  end  and 
prefer  the  interests  of  mankind  to  any  narrow 
interest  of  their  own. 

Does  not  every  American  feel  that  assurance 


APPENDIX  249 

lias  been  added  to  our  hope  for  the  future  peace 
of  the  world  by  the  wonderful  and  heartening 
things  that  have  been  happening  within  the  last 
few  weeks  in  Eussia?  Eussia  was  known  by 
those  who  knew  it  best  to  have  been  always  in 
fact  democratic  at  heart,  in  all  the  vital  habits 
of  her  thought,  in  all  the  intimate  relationships 
of  her  people  that  spoke  their  natural  instinct, 
their  habitual  attitude  towards  life.  The  au- 
tocracy that  crowned  the  summit  of  her  political 
structure,  long  as  it  had  stood  and  terrible  as 
was  the  reality  of  its  power,  was  not  in  fact 
Eussian  in  origin,  character,  or  purpose;  and 
now  it  has  been  shaken  off  and  the  great,  gen- 
erous Eussian  people  have  been  added  in  all 
their  naive  majesty  and  might  to  the  forces  that 
are  fighting  for  freedom  in  the  world,  for  jus- 
tice, and  for  peace.  Here  is  a  fit  partner  for  a 
League  of  Honor. 

One  of  the  things  that  has  served  to  convince 
us  that  the  Prussian  autocracy  was  not  and 
could  never  be  our  friend  is  that  from  the  very 
outset  of  the  present  war  it  has  filled  our  un- 
suspecting communities  and  even  our  offices  of 
government   with   spies   and   set   criminal   in- 


250    AMEEICA'S  CASE  AGAINST  GERMANY 

trigues  everywhere  afoot  against  our  national 
unity  of  counsel,  our  peace  within  and  without, 
our  industries  and  our  commerce.  Indeed  it  is 
now  evident  that  its  spies  were  here  even  before 
the  war  began ;  and  it  is  unhappily  not  a  matter 
of  conjecture  but  a  fact  proved  in  our  courts 
of  justice  that  the  intrigues  which  have  more 
than  once  come  perilously  near  to  disturbing  the 
peace  and  dislocating  the  industries  of  the  coun- 
try have  been  carried  on  at  the  instigation,  with 
the  support,  and  even  under  the  personal  direc- 
tion of  official  agents  of  the  Imperial  Govern- 
ment accredited  to  the  Government  of  the 
United  States.  Even  in  checking  these  things 
and  trying  to  extirpate  them  we  have  sought  to 
put  the  most  generous  interpretation  possible 
upon  them  because  we  knew  that  their  source 
lay,  not  in  any  hostile  feeling  or  purpose  of  the 
German  people  towards  us  (who  were,  no  doubt, 
as  ignorant  of  them  as  we  ourselves  were),  but 
only  in  the  selfish  designs  of  a  Government  that 
did  what  it  pleased  and  told  its  people  nothing. 
But  they  have  played  their  part  in  serving  to 
convince  us  at  last  that  that  Government  enter- 
tains no  real  friendship  for  us  and  means  to  act 


APPENDIX  251 

against  our  peace  and  security  at  its  conven- 
ience. That  it  means  to  stir  up  enemies  against 
us  at  our  very  doors  the  intercepted  note  to  the 
German  Minister  at  Mexico  City  is  eloquent 
evidence. 

We  are  accepting  this  challenge  of  hostile 
purpose  because  we  know  that  in  such  a  govern- 
ment, following  such  methods,  we  can  never 
have  a  friend;  and  that  in  the  presence  of  its 
organized  power,  .always  lying  in  wait  to  accom- 
plish we  know  not  what  purpose,  there  can  be 
no  assured  security  for  the  democratic  govern- 
ments of  the  world.  We  are  now  about  to  ac- 
cept gauge  of  battle  with  this  natural  foe  to  lib- 
erty and  shall,  if  necessary,  spend  the  whole 
force  of  the  nation  to  check  and  nullify  its  pre- 
tensions and  its  power.  We  are  glad,  now  that 
we  see  the  facts  with  no  veil  of  false  pretense 
about  them,  to  fight  thus  for  the  ultimate  peace 
of  the  world  and  for  the  liberation  of  its  peo- 
ples, the  German  peoples  included:  for  the 
rights  of  nations  great  and  small  and  the  priv- 
ilege of  men  everywhere  to  choose  their  way  of 
life  and  of  obedience.  The  world  must  be  made 
safe  for  democracy.    Its  peace  must  be  planted 


252    AMERICA'S  CASE  AGAINST  GERMANY 

upon  the  tested  foundations  of  political  liberty. 
We  have  no  selfish  ends  to  serve.  We  desire  no 
conquest,  no  dominion.  We  seek  no  indemnities 
for  ourselves,  no  material  compensation  for  the 
sacrifices  we  shall  freely  make.  We  are  but  one 
of  the  champions  of  the  rights  of  mankind.  We 
shall  be  satisfied  when  those  rights  have  been 
made  as  secure  as  the  faith  and  the  freedom  of 
nations  can  make  them. 

Just  because  we  fight  without  rancor  and 
without  selfish  object,  seeking  nothing  for  our- 
selves but  what  we  shall  wish  to  share  with  all 
free  peoples,  we  shall,  I  feel  confident,  conduct 
our  operations  as  belligerents  without  passion 
and  ourselves  observe  with  proud  punctilio  the 
principles  of  right  and  of  fair  play  we  profess 
to  be  fighting  for. 

I  have  said  nothing  of  the  governments  allied 
with  the  Imperial  Government  of  Germany  be- 
cause they  have  not  made  war  upon  us  or  chal- 
lenged us  to  defend  our  right  and  our  honor. 
The  Austro-Hungarian  Government  has,  indeed, 
avowed  its  unqualified  endorsement  and  accep- 
tance of  the  reckless  and  lawless  submarine 
warfare  adopted  now  without  disguise  by  the 


APPENDIX  '  253 

Imperial  German  Government,  and  it  has  there- 
fore not  been  possible  for  this  Government  to 
receive  Count  Tarnowski,  the  Ambassador  re- 
cently accredited  to  this  Government  by  the  Im- 
perial and  Royal  Government  of  Austria-Hun- 
gary; but  that  government  has  not  actually  en- 
gaged in  warfare  against  citizens  of  the  United 
States  on  the  seas,  and  I  take  the  liberty,  for  the 
present  at  least,  of  postponing  a  discussion  of 
our  relations  with  the  authorities  at  Vienna. 
We  enter  this  war  only  where  we  are  clearly 
forced  into  it  because  there  are  no  other  means 
of  defending  our  rights. 

It  will  be  all  the  easier  for  us  to  conduct  our- 
selves as  belligerents  in  a  high  spirit  of  right 
and  fairness  because  we  act  without  animus,  not 
in  enmity  towards  a  people  or  with  the  desire 
to  bring  any  injury  or  disadvantage  upon  them, 
but  only  in  armed  opposition  to  an  irresponsible 
government  which  has  thrown  aside  all  consid- 
erations of  humanity  and  of  right  and  is  run- 
ning amuck.  We  are,  let  me  say  again,  the  sin- 
cere friends  of  the  German  people,  and  shall 
desire  nothing  so  much  as  the  early  reestablish- 
ment  of  intimate  relations  of  mutual  advantage 


254    AMERICA'S  CASE  AGAINST  GERMANY 

between  us, — however  hard  it  may  be  for  them, 
for  the  time  being,  to  believe  that  this  is  spoken 
from  our  hearts.  We  have  borne  with  their 
present  government  through  all  these  bitter 
months  because  of  that  friendship, — exercising 
a  patience  and  forbearance  which  would  other- 
wise have  been  impossible.  We  shall,  happily, 
still  have  an  opportunity  to  prove  that  friend- 
ship in  our  daily  attitude  and  actions  towards 
the  millions  of  men  and  women  of  German  birth 
and  native  sympathy  who  live  amongst  us  and 
share  our  life,  and  we  shall  be  proud  to  prove 
it  towards  all  who  are  in  fact  loyal  to  their 
neighbors  and  to  the  Government  in  the  hour 
of  test.  They  are,  most  of  them,  as  true  and 
loyal  Americans  as  if  they  had  never  kno^vn  any 
other  fealty  or  allegiance.  They  will  be  prompt 
to  stand  with  us  in  rebuking  and  restraining 
the  few  who  may  be  of  a  different  mind  and  pur- 
pose. If  there  should  be  disloyalty,  it  will  be 
dealt  with  with  a  firm  hand  of  stern  repression ; 
but,  if  it  lifts  its  head  at  all,  it  will  lift  it  only 
here  and  there  without  countenance  except  from 
a  lawless  and  malignant  few. 

It  is  a  distressing  and  oppressive  duty.  Gen- 


APPENDIX  255 

tlemen  of  the  Congress,  which  I  have  performed 
in  thus  addressing  you.  There  are,  it  may  be, 
many  months  of  fiery  trial  and  sacrifice  ahead 
of  us.  It  is  a  fearful  thing  to  lead  this  great 
peaceful  people  into  war,  into  the  most  terrible 
and  disastrous  of  all  wars,  civilization  itself 
seeming  to  be  in  the  balance.  But  the  right  is 
more  precious  than  peace,  and  we  shall  fight  for 
the  things  which  we  have  always  carried  near- 
est our  hearts, — for  democracy,  for  the  right  of 
those  who  submit  to  authority  to  have  a  voice 
in  their  own  governments,  for  the  rights  and 
liberties  of  small  nations,  for  a  universal  do- 
minion of  right  by  such  a  concert  of  free  peo- 
ples as  shall  bring  peace  and  safety  to  all  na- 
tions and  make  the  world  itself  at  last  free.  To 
such  a  task  we  can  dedicate  our  lives  and  our 
fortunes,  everything  that  we  are  and  everything 
that  we  have,  with  the  pride  of  those  who  know 
that  the  day  has  come  when  America  is  priv- 
ileged to  spend  her  blood  and  her  might  for  the 
principles  that  gave  her  birth  and  happiness 
and  the  peace  which  she  has  treasured.  God 
helping  her,  she  can  do  no  other. 


APPENDIX  II 


The  following  memorandum^  has  been  pre- 
pared by  the  Department  of  State  to  show  the 
submarine  outrages  which  have  directly  affected 
American  interests: 

American  ships  damaged  or  destroyed  by  German  submarines. 


Name  of  Vessel. 

Date. 

Particulars. 

Gulflight             .           -         V 

May     2,  1915 
May  25,  1915 
July  25,  1915 
June  16,  1916 
Aug.  14,  1916 

Oct.   28,  1916 
Nov.    7,  1916 
Nov.  26,  1916 
Dec.  10,  1916 
Dec.  14,  1916 
Jan.      9,  1917 
Feb.     3,  1917 
Feb.   13,  1917 
Mar.  16,  1917 
Mar.  17,  1917 
do 

Torpedoed. 

Do. 

Leelanaw            

Torpedoed  and  shelled. 

Seaconnet 

Damaged  by  mine  or  torpedo. 

Fired  on  10  times  by  subma- 

Lanao (Philippine) 

Columbian 

Colena                      

rine. 
Sunk  by  submarine. 

Do. 
Fired  on. 

St  Helen's 

Attacked  by  submarine. 

Rebecca  Palmer 

Sacramento 

Fired  on;  slight  damage. 
Fired  on. 

Sunk. 

Burned  by  submarine. 

Vigi'ancia .... 

Torpedoed. 
Sunk  by  gunfire. 

Aztec 

Apr.     1,  1917 

Do. 

SHIPS   SUNK  WITH  LOSS  OF  AMERICAN  LI\T:S 

British  ship  Falaha,  torpedoed  March  28,  1915  (warned) ;  1 
American  lost. 

British  ship  Lusitania,  torpedoed  May  7,  1915  (no  warning)  ; 
114  Americana  lost. 


*  Published  in  the  Congressional  Eecord,  65th  Congress,  1st 
Session,  p.  1006  (April  23,  1917). 

256 


APPENDIX  257 

American  ship  GulfligJit,  torpedoed  May  1,  1915  (no  -warn- 
ing) ;   2  Americans  lost. 

British  ship  Armenian,  torpedoed  June  28,  1915  (ordered  to 
stop;   tried  to  escape);   23  Americans  lost. 

British  ship  Iberian,  sunk  July  31,  1915  (tried  to  escape; 
stopped  by  shell  fire) ;  3  Americans  lost. 

British  ship  Anglo-Calif ornian,  sunk  July  4,  1915;  2  Ameri- 
cans lost. 

British  ship  Hesperian,  torpedoed  September  4,  1915  (no 
warning)  ;   1  American  lost. 

British  ship  Arabic,  torpedoed  August  19,  1915  (no  warn- 
ing) ;   3  Americans  lost. 

British  ship  Persia,  believed  to  have  been  torpedoed;  sunk 
December  30,  1915  (no  warning)  ;  2  Americans  lost. 

Italian  ship  Ancona,  torpedoed  November  9,  1915  (no  warn- 
ing).; 7  Americans  lost. 

British  ship  Englishman,  torpedoed  March  27,  1916;  6 
Americans  lost    (1  more  whose  nationality  is  doubtful). 

British  ship  Sabota,  sunk  by  gunfire  October  20,  1916;  1 
American  lost. 

British  ship  Marina,  sunk  by  gunfire  October  28,  1916 
(warned)  ;   8  Americans  lost. 

British  ship  Bussian,  torpedoed  December  14,  1916  (no 
warning)  :   17  Americans  lost. 

British  ship  Eaveston,  sunk  by  shell  fire  February  5,  1917; 
1  American  lost   (1  other  whose  nationality  is  doubtful). 

British  ship  Vedamore,  torpedoed  February  7,  1917  (no 
warning)  ;  10  Americans  lost. 

British  ship  Turino,  torpedoed  February  7,  1917  (no  warn- 
ing) ;   1  American   (?)   lost. 

French  ship  Athos,  torpedoed  February  22,  1917  (no  warn- 
ing) ;    1  American  lost. 

British  ship  Laconia,  torpedoed  February  26,  1917  (no  warn- 
ing) ;   8  Americans  lost. 

Norwegian  ship  Sjostad,  believed  torpedoed  March  2,  1917 
(no  warning)  ;  1  American  lost. 


258    AMERICA'S  CASE  AGAINST  GEEMANY, 

American  ship  Vigilancia,  torpedoed  March  16,  1917  (no 
warning)  ;   5  Americans  lost. 

American  ship  Eealdton,  torpedoed  March  21,  1917  (no 
warning)  ;  7  Americans  lost. 

British  ship  Crispin,  torpedoed  March  29,  1917  (no  warn- 
ing) ;    68   Americans  on  board,   1  killed,   18   missing. 

Total,  226  American  lives  lost. 

On  the  Lusitania  there  were  also  24  children  born  of  foreign 
parents  on  American  soil. 

Carih  (American),  February  23,  1915  (mined);  1  Ameri- 
can lost. 

Koophandel  (Belgian),  August  1,  1915  (torpedoed);  1 
American  lost. 

Batavier  V  (Dutch),  May  16,  1916  (mined)  ;  1  American  lost. 

Alaunia  (British),  October  19,  1916  (possibly  mined)  ;  1 
American  lost  (statement  unreliable). 

Cabotia  (British),  October  20,  1916  (torpedoed);  1  Ameri- 
can lost. 

Palermo  (Italian),  December  2,  1916  (torpedoed);  1  Ameri- 
can lost. 

Galgorm  Castle  (British),  February  27,  1917  (torpedoed); 
2  Americans  lost. 

Argo  (Portuguese),  March  23,  1917  (torpedoed);  3  Ameri- 
cans lost. 

Astec  (American),  April  1,  1917  (torpedoed);  28  missing. 
«l2^umber  of  Americans  lost  not  established. 


INDEX 


Admiral  Ganteaume,  the,  sunk 
by  submarine,  229. 

Algonquin,  sinking  of  the,  217. 

Allies,  cause  of  that  of  U.  S., 
3,  222;  reply  of  to  peace 
proposals,  196. 

American  Civil  War,  starva- 
tion as  method  of  warfare, 
37;  and  doctrine  of  continu- 
ous voyage,  45;  and  use  of 
neutral  flags,  56. 

Ancona,  sinking  of  the,  138  ff; 
punishment  for  submarine 
commander,  188  n. 

Anglo-Calif ornian,  the,  at- 
tacked by  submarine,  88, 
94  n. 

Arabia,  sinking  of  the,  193. 

Arabic,  sinking  of  the,  97,  148, 
176,  229;  German  excuse 
for,  lOOff. 

Armed  merchant  vessels,  31  n, 
65;  German  policy  towards, 
150,  153  ff;  and  Lusitania 
notes,  160;  American  pro- 
posals, 161  ff ;  congressional 
resolution,  163;  President 
Wilson's  letter  on,  164;  final 
position  of  U.  S.,  165. 


Armed  neutrality,  211  ff;  in- 
adequacy of,  218  ff. 

Armenian,  the,  sunk  by  sub- 
marine, 87,  94  n. 

Asquith,  H.  H.,  14. 

Athos,  sinking  of  the,  208  n. 

Austria-Hungary,  and  Decla- 
ration of  London,  42;  muni- 
tion shipments,  126;  sub- 
marine campaign,  138;  An- 
cona incident,  141  ff ;  sub- 
marine pledges,  144. 

Aztec,  sinking  of  the,  217  n. 

Baty,  T.,  quoted,  13  n. 

Belgium,  invasion  of,  3,  135. 

BernstorfT,  Ambassador,  35, 
75  n,  84  n,  108,  228;  note  on 
Arabic,  99;  and  dumdum 
bullets,  113;  and  munition 
shipments,  116  ff;  subma- 
rine pledges,  147;  handed 
passports,  206. 

Berwindale,  sinking  of  the,  171. 

Bethlehem  Steel  Company  and 
submarine  parts,  114. 

Bismarck,  Prince,  37. 

Blockade,  requirements  for 
legal,  24;  by  submarines, 
11  ff. 


259 


260 


INDEX 


Bryan,  Secretary  of  State,  pro- 
posals to  belligerents  for 
concessions,  31;  on  use  of 
neutral  flags,  55;  resignation 
and  Lusitania  case,  81  n. 

Caprivi,  Count,  37. 
Cecil,  Lord  Robert,  228,  230, 
231. 

Chemung,  sinking  of  the,  194. 

City  of  Memphis,  sinking  of 
the,  217. 

Columbian,  sinking  of  the,  193. 

Combatants  and  noncombat- 
ants,  distinction  between, 
4  ff,  227. 

Congress,  called  in  special  ses- 
sion, 218. 

Congressional  resolution  on 
armed  merchantmen,  163, 

Continuous  voyage,  doctrine 
of,  45  ff . 

Contraband,  absolute  and  con- 
ditional, 17  ff ;  England's  at- 
titude toward,  45. 

"Conversations"  over  Lusita- 
nia, 149. 

Crimean  War  and  doctrine  of 
continuous  voyage,  45. 

Cushing,  the,  attacked  by 
German  aeroplane,  60,  71, 
75,  76. 

Cymric,  sinking  of  the,  189. 

Declaration  of  London,  disre- 
gard of  by  England,  17,  82; 
submarine     campaign,     31; 


purpose  of,  41;  ratification 
by  U.  S.,  42;  in  French  and 
German  naval  codes,  42; 
continuous  voyage,  45;  de- 
struction of  prizes,  53,  63. 

Declaration  of  Paris,  156. 

Declaration  of  War  by  Con- 
gress, 223. 

Decree  of  January  31,  1917, 
unrestricted  submarine  war- 
fare, 168,  196  ff. 

Democracy,  cause  of  Alhes 
and  U.  S.,  3  ff,  222  ff. 

Destruction  of  Prizes,  47  ff . 

Deuischland,  the,  and  Amer- 
ican neutrality,  192. 

Diplomatic  relations  with  Ger- 
many, threatened  break, 
179;  actual  break,  206. 

Eagle  Point,  sinking  of  the,  171. 
Englishman,     sinking    of    the, 
171. 

Falaha,  sinking  of  the,  60,  72, 
76,  94  n. 

Famine,  as  method  of  warfare, 
26  ff,  40,  127. 

Food  supply  of  Germany,  230. 

Franco-Prussian  War  and  mu- 
nition shipments,  120. 

French  Arms  Debate,  120. 

Frye,  William  P.,  destruction 
of  the,  28  n,  60;  German 
hability  under  treaties,  61, 
89  n,  104,  106;  referred  to, 
148  n,  209,  229. 


INDEX 


261 


Garner,  James  W,,  quoted, 
49,  51,  96  n,  128  n. 

Geneva  Conventions,  48. 

Gerard,  Ambassador,  86, 104  n, 
170,  207. 

German  Embassy,  advertised 
warning  concerning  war 
zone,  70. 

German  Prize  Code,  54,  61. 

German  theory  of  the  state,  3. 

German  War  Book,  3. 

Germany,  alhance  with  Mex- 
ico and  Japan  against  U.  S., 
5,  215;  violations  of  inter- 
national law,  5  ff ;  war  zone 
decree,  16  ff;  decree  control- 
ling food  stuffs,  27  n,  45; 
refusal  of  American  propo- 
sals for  concessions,  33,  74  n; 
and  Declaration  of  London, 
42;  submarine  pledges  to 
U.  S.,  97  ff,  147;  munitions 
of  war,  116  ff,  126;  armed 
merchantmen,  163;  Sussex 
case,  171  ff;  peace  proposals, 
196;  diplomatic  relations 
broken,  206;  war  declared, 
223. 

Great  Britain,  violations  of 
international  law  by,  8,  90; 
American  proposals  for  con- 
cessions, 74  n. 

Gulflight,  sinking  of  the,  60, 
72,  75,  86,  94  n. 

Hague  Conventions,  and  de- 
struction of  prizes,  50  ff ; 
trade  in  munitions,  117  ff. 


Healdton,     sinking     of     the, 

217  n. 
Hesperian,  torpedoing  of  the, 

101  ff. 
Higgins,    A.    Pearce,    quoted, 

157. 
Hospital  ships,  immunity  of, 

9n,  48. 
Housatonic,  sinking  of  the,  209. 

Illinois,  sinking  of  the,  217. 

Imperator,  the,  sunk  by  sub- 
marine, 151  n. 

Institute  of  International  Law, 
157. 

International  Law,  violations 
of  by  Germany,  3,  4,  36;  by 
Great  Britain,  17,  43  ff,  90; 
changes  during  war,  134. 

International  Prize  Court,  41. 

Japan,  alliance  with  Mexico 
and  Germany  against  U.  S., 
5,  215. 

Jefferson,  Thomas,  118. 

Kansas,   the,  stopped  by  the 

U-63,  191. 
Karlsruhe,  the,  27  n,  229. 
Kronprinz  Wilhelm,  the,  229. 

Laconia,  sinking  of  the,  217, 
220. 

La  Follette,  Senator,  35  n. 

Lansing,  Secretary  of  State, 
54  n;  last  note  on  Lusitania, 
89;  on  use  of  submarines 
against  commerce,  93,  94  n; 


262 


INDEX 


on  sinking  of  the  Arabic,  99  ff, 
108;  letter  to  Senator  Stone, 
115;  note  to  Austria  on  mu- 
nitions, 129  ff;  proposals  as 
to  armed  merchantmen,  161; 
final  position,  165. 

Leelanaw,  sinking  of  the,  89. 

Leo,  sinking  of  the,  88,  107  n. 

"Liners,"  meaning  of,  105  ff. 

London  Naval  Conference,  42. 

Lusitania,  the,  use  of  Ameri- 
can flag  by,  54,  57;  sinking 
of,  60  ff;  note  of  U.S.,  66  ff; 
German  reply,  72  ff ;  second 
note  of  U.  S.,  75,  94  n;  Ger- 
man rejoinder,  81  ff;  "con- 
versations" over^96;  and 
contraband,  97;  German  de- 
fense, 108;  settlement,  149; 
punishment  for  commander, 
188  n;  referred  to,  87,  88,  89, 
176,  177  n,  220,  225. 

Lyman  M.  Law,  sinking  of  the, 
209. 

Manchester  Engineer,  sinking  of 

the,  171. 
Maria,  the,  destruction  of  by 

a  German  cruiser,  27  n,  229. 
Marina,  sinking  of  the,  192. 
Marshall,  Chief  Justice,  155. 
Merchant  vessels,  immunity  of 

from     destruction     without 

warning,  21  ff,  47  ff ;  right  to 

arm,  153  ff ;  conversion  into 

warships,  153,  156. 
Mexico,    alHance   with   Japan 

and  Germany  against  U.  S., 


5,  215;  American  embargo 
on  arms  to,  112,  124. 

Meyer-Gerhard,  Dr.  Anton, 
85  n. 

Monroe  Doctrine,  5. 

Morgan,  J.  H.,  quoted,  13  n. 

Munitions,  trade  in,  109  ff ; 
protests  by  Germany,  25,  35; 
and  Prussian-American  trea- 
ties, 62  ff ;  and  American  in- 
terests, 131 ;  on  Lusitania,  73. 

Munition  ships,  219. 

Napoleonic  Wars  and  Amer- 
ican neutraUty,  118. 

Nebraskan,  the,  damaged  by 
torpedo,  85  ff,  94  n. 

Nereide,  the,  155. 

Neutral  flag,  use  of  by  Eng- 
land, 30;  by  belUgerent 
ships,  54  ff ;  protest  by  U.  S., 
55;  British  reply,  56. 

Neutral  vessels,  destruction  of, 
52  ff. 

Neutrals,  trade  with,  46. 

Normandy,  the,  88,  107. 

Olympia,  the,  escape  from  tor- 
pedo, 13. 

Orders  in  Council,  137,  225. 

Orduna,  the,  escape  from  tor- 
pedo, 88,  94  n,  107  n. 

Overt  acts,  210  ff. 

"Paper  blockades,"  24. 
P atria,  sinking  of  the,  170. 
Peace  proposals  by  President 
WUson,  195  ff. 


INDEX 


263 


Persia,  sinking  of  the,  146,  148. 

Petrolite,  the,  shelled  by  sub- 
marine, 146  n. 

Pinzon,  the,  122. 

Prinz  Eitel  Frederick,  the,  61, 
229. 

Prussian-American  Treaties, 
61,  89  n,  104,  137  n,  207. 

Realpolitik,  82. 

Reprisals,  225. 

Retaliation,  right  of,  17  ff, 
91  n,  224  ff. 

Rousseau,  J.  J.,  227. 

Rowanmore,  sinking  of  the,  192. 

Russo-Japanese  War,  war 
zones  in,  11  ff;  destruction 
of  neutral  prizes,  52  ff ;  sale 
of  munitions  during,  115. 

Russian,  sinking  of  the,  194. 

Russian  Revolution,  235. 

Schneider,  Commander,  102. 

Schurz,  Carl,  120. 

Seward,  Secretary,  119. 

Sherman  anti-trust  law  and 
German  plots,  221. 

Silius,  sinking  of  the,  170. 

Smith,  Munro,  quoted,  226, 
231. 

Spanish  American  War  and 
munition  shipments,  121. 

Starvation  as  method  of  war- 
fare, 197,  227. 

Stephana,  sinking  of  the,  191. 

Stone,  Senator,  115,  163,  219. 

"Strict  accountabihty  "  note  of 
U.  S.,  20  ff,  56  n,  108. 


Submarine  mines,  and  Hague 
Conventions,  12;  laid  by 
England,  15;  by  Germany, 
15. 

Submarine  warfare,  and  inter- 
national ruthlessness,  2;  ad- 
mission by  Germany  of  ille- 
gahty,  33;  unfitness  for  use 
against  commerce,  68;  and 
dictates  of  humanity,  69;  as 
vahd  means  of  retahation, 
90,  226;  in  the  Mediterra- 
nean, 138  ff;  Austrian 
pledges,  144 ;  German 
pledges,  147;  as  new  weapon, 
228  ff . 

Sussex,  sinking  of  the,  8,  92, 
106,  148,  171;  Germany's 
defense,  172;  President  Wil- 
son's note,  173;  threatened 
break,  179,  202;  Germany's 
reply,  181;  quaUfied  pledge, 
186;  pledge  withdrawn,  199. 

Thrasher,  Leon  C,  60. 
Tubantia,  sinking  of  iAie,  170. 

U-53,  the,  sinkings  by  off  New- 
port, 190. 

United  States,  protest  against 
war  zone  decree,  20  ff,  80; 
proposals  for  mutual  con- 
cessions, 31  ff;  and  Declara- 
tion of  London,  41  ff ;  and 
neutral  flags,  54  ff;  diplo- 
matic victory,  103;  attitude 
on  armed  merchantmen, 
153  ff;     final     position     on 


264 


INDEX 


armed  merchantmen,  165  ff; 
and  armed  neutrality,  211  ff; 
declaration  of  war  by,  223. 

Vigilancia,  sinking  of  the,  217. 
Ville  de  la  Ciotat,  sinking  of 

the,  147. 
Viviani,  Rene,  quoted,  233. 
Von  Tirpitz,  Admiral,  16,  229. 

War  as  struggle  between  states, 
227. 

War  zones,  legality  of,  11  ff; 
declaration  of  by  Great 
Britain,  13;  by  Germany, 
16  ff,  47;  protest  of  U.  S., 
20;  German  policy  in,  65. 

White,  Andrew  D.,  122. 

Wilhelmina,  the,  seizure  of  by 
British  cruiser,  27  n. 

Wilson,  Woodrow,  on  justifica- 
tion of  war,  2 ;  war  address  to 
Congress,  6,  237  ff ;  note  on 


Sussex,  9;  on  Lusitania, 
66  ff ;  on  trade  in  munitions, 
116  ff ;  on  sinking  of  Ancona, 
139;  letter  to  Senator  Stone 
on  armed  merchantmen, 
163;  peace  proposals,  195  ff; 
severs  diplomatic  relations, 
206;  and  armed  neutrality, 
211  ff;  asks  for  declaration  of 
war,  222;  peace  loving  pres- 
ident, 234. 

Yarrowdale,  American  prison- 
ers from  the,  207. 

Yasaka  Maru,  sinking  of  the, 
147. 

Zimmermann,  Dr.  Alfred,  pro- 
posals of  Japanese-Mexican 
alliance  against  U.  S.,  5, 
215;  statement  on  submarine 
warfare,  194. 


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